JUDGE:	CAVANOUGH J
WHERE HELD:	Melbourne
DATE OF HEARING:	21, 22, 23, 24 June, 22, 23 August 2011
DATE OF JUDGMENT:	11 January 2012. Revision No 1 published 17 January 2012
CASE MAY BE CITED AS:	Prowse v Johnstone & Ors
MEDIUM NEUTRAL CITATION:	[2012] VSC 4

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REAL PROPERTY – Restrictive Covenant – Construction – Application for modification – Proceeding dismissed – Property Law Act 1958, s 84.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr Michael Wright QC with Mrs Joycey Tooher	Lukaitis Partners
For the Defendants	Mr Gregory Garde SC with Mr Matthew Townsend	Russell Kennedy

HIS HONOUR:

Overview

The plaintiff is the registered proprietor of the land at 191-193 Wattletree Road, Malvern, on which there presently stands a double-storey Edwardian house surrounded by a garden. The property was the plaintiff’s family home for many years. It falls within an area known as the Coonil Estate. The Coonil Estate was originally owned by the Langmore family. In 1886 they constructed a mansion on the western portion of it. The Estate was subdivided into 63 allotments in 1910. Lot 1, a site of some three acres on which the mansion stood, was retained. In 1919 Lot 1 was acquired by the Sisters of Mercy and the mansion was used by them as a private hospital until 1948. Thereafter Lot 1 was taken over by another order of Sisters associated with the worldwide Cabrini Association. They founded a new hospital, Cabrini Hospital, which evolved and expanded and is now one of Melbourne’s leading hospitals. There has also been a lawn bowling club within the Coonil Estate for many years. Otherwise, since its establishment, the Estate has generally consisted of good quality residential properties presenting as detached houses together with, from time to time, the odd vacant allotment.[1] The plaintiff’s property comprises Lots 7 and 8 of the original subdivision. The Edwardian house is built mostly on Lot 7, encroaching only slightly onto Lot 8.
[1]The basic history of the Coonil Estate is common ground: see esp transcript 58-59.

The plaintiff now proposes that the house be demolished and that a three-storey building comprising 18 residential apartments, together with a basement car park for 36 cars, be erected on the property. A restrictive covenant applicable to the property stands in the way of the proposal. So, in this proceeding the plaintiff seeks orders under s 84(1) of the Property Law Act 1958 (“the Act”) to modify the restrictions imposed by the covenant so far as necessary to enable the proposal to be put into effect.

Further, as a related matter, the plaintiff seeks a declaration, under s 84(2) of the Act or under…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Prowse v Johnstone

Details

AGLC: Prowse v Johnstone [2012] VSC 4
Case: [2012] VSC 4
Decision Date: 11 January 2012. Revision No 1 published 17 January 2012

CaseChat Overview and Summary

In the matter of Prowse v Johnstone, the dispute centred around a restrictive covenant imposed on a property in Victoria. The applicant, Prowse, sought a modification of the covenant, which was originally placed on the property by the vendor, Johnstone. The case was heard by the Supreme Court of Victoria. The central issue before the court was the interpretation and potential modification of a restrictive covenant under the Property Law Act 1958. The court had to determine the precise meaning of the covenant and assess whether there were grounds for its modification under section 84 of the Act.

The court examined the language of the covenant and its original purpose, considering the context in which it was imposed. It was noted that restrictive covenants are intended to protect the character and use of a particular area, and any modification must not undermine this purpose. The applicant argued that changes in the surrounding area warranted a modification of the covenant. However, the court found that the covenant's purpose remained intact and that the changes cited did not justify a departure from the original terms. The court held that the covenant was clear in its terms and that there were no exceptional circumstances that warranted a modification.

In light of the above, the court dismissed the applicant's application for modification of the restrictive covenant. The court emphasised that restrictive covenants are not to be lightly altered, especially when their original purpose remains valid. The dismissal was based on the principle that modifications should not undermine the intended effect of the covenant. The court did not find any basis to alter the covenant under section 84 of the Property Law Act 1958. Consequently, the restrictive covenant remained in force, preserving the original terms as intended by the parties involved.

Orders