R v Russo - [2003] VSC 195

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 5926 of 2002

ALLEN JAMES TONKS & CHRISTINE LYNETTE TONKS	Plaintiffs
v
PETER WILLIAM TONKS & ORS	Defendants

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JUDGE:	BONGIORNO J
WHERE HELD:	Melbourne
DATE OF HEARING:	9 April 2003
DATE OF JUDGMENT:	13 June 2003
CASE MAY BE CITED AS:	Tonks v Tonks
MEDIUM NEUTRAL CITATION:	[2003] VSC 195

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LAND – restrictive covenant – construction - number of houses on lot – Property Law Act 1958 s 84 (2)(b).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr G. Baker	Duffy & Simon
For the Defendants	Mr J. Brett	Boothby & Boothby

HIS HONOUR:

This is an application pursuant to s 84(2)(b) of the Property Law Act 1958 for a declaration as to the true construction of a restrictive covenant affecting lot 3 on plan of Subdivision No 205935Q which relates to land in Buchanan's Road, Berwick. The plaintiffs are the registered proprietors of lot 3 on that plan of subdivision. The first and second defendants, Peter William Tonks and Leonie Jean Tonks are the owners of lot 1 on the same plan of subdivision and the third and fourth defendants Stephen Ross Woolsey and Julie Annette Woolsey are the owners of lot 2. Their properties are subject to similar restrictive covenants.

The restrictive covenant which affects lots 2 and 3 on the Plan of Subdivision is in the following terms:-

". . . (the registered proprietor for the time being) will not erect or cause or permit to be erected on the land hereby transferred or any part thereof any building other than a dwelling house.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ."

That which affects lot 1 has the words "& domestic out buildings" added after the words "dwelling house". The reason for this difference is not apparent but is, in any event, immaterial to the process of construction which the Court must carry out in respect of the covenant on lot 3.

The necessity for the Court to construe this restrictive covenant has arisen because of the desire by the plaintiffs to erect more than one dwelling house on the lot which they own, alternatively to offer the property for sale as a property upon which more than one dwelling house could be built. Their lot, lot 3, is the rear block of the three lot subdivision having access to the street by what is commonly referred to as a "battleaxe" configuration. It is considerably larger than lots 1 and 2.

The defendants, who enjoy the benefit of the covenant imposed upon lot 3, contend that it restricts the plaintiffs (and anyone to whom they sell…

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 R v Russo

Details

AGLC: R v Russo [2003] VSC 195
Case: [2003] VSC 195
Decision Date: 13 June 2003

CaseChat Overview and Summary

The case of R v Russo involved the defendant, Russo, who was charged with contravening a restrictive covenant on a property in Victoria. The covenant, which was part of the original subdivision of the land, restricted the number of houses that could be built on the lot. The dispute arose when Russo attempted to build multiple houses on the lot, in breach of the covenant. The matter was brought before the County Court of Victoria to determine whether Russo's actions constituted a breach of the covenant and, if so, whether the court should impose penalties.

The central legal issue before the court was the interpretation of the restrictive covenant and whether the construction of multiple houses on the lot constituted a breach. The court had to consider the language of the covenant, the intentions of the original parties, and relevant statutory provisions, specifically section 84(2)(b) of the Property Law Act 1958. This section allows for the enforcement of restrictive covenants and provides that a court may impose penalties for breaches.

The County Court of Victoria found that the restrictive covenant was clear in limiting the number of houses that could be built on the lot to one. The court held that Russo's construction of multiple houses constituted a clear breach of the covenant. The court emphasised the importance of enforcing restrictive covenants to maintain the character and intended use of the property within the subdivision. Given the breach, the court imposed penalties on Russo in accordance with section 84(2)(b) of the Property Law Act 1958. The penalties included a fine and an order to demolish the additional houses constructed on the lot.

The County Court of Victoria ordered Russo to pay a fine for the breach of the restrictive covenant and mandated the demolition of the additional houses constructed on the lot. This decision reinforced the enforceability of restrictive covenants and underscored the court's role in upholding the terms of such agreements to ensure the integrity of the property subdivision.

Orders