Re Comdain Homes Pty Ltd - [2013] VSC 487

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IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2013 2772

IN THE MATTER of the Property Law Act 1958, section 84(1)

and

IN THE MATTER of a restriction imposed by Instrument of Transfer No. 1086247 registered in the Land Registry on Certificate of Title Volume 5152 Folio 351

and

IN THE MATTER of an application by COMDAIN HOMES PTY LTD (ACN 092 279 918) for the discharge or modification of the restrictive covenant contained in Instrument of Transfer No. 1086247 registered in the Land Registry in the Register Book and imposed upon the land more particularly described in Certificate of Title Volume 5152 Folio 351

WHEREIN

COMDAIN HOMES PTY LTD (ACN 092 270 918)

is Plaintiff

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JUDGE:	Derham AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	30 August and 11 September 2013
DATE OF JUDGMENT:	11 September 2013
CASE MAY BE CITED AS:	Re Comdain Homes Pty Ltd
MEDIUM NEUTRAL CITATION:	[2023] VSC 487

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REAL PROPERTY – Restrictive covenant – Application for modification – Applicable legal principles – Covenant restricting erection on the land of any building other than one house not to be used for any purpose other than as a private dwelling or as bank premises– Application to modify to include use as a display home for two years – Whether modification will not substantially injure the persons entitled to the benefit - Application granted – Property Law Act 1958, section 84(1)(c).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P. Chiappi	Hunt and Hunt
For the Objectors	Mr P. Tibballs, in person
For the Boroondara City Council	Mr C. Cantor, solicitor	Maddocks Lawyers

HIS HONOUR:

Introduction

By originating motion filed on 31 May 2013, the plaintiff applies pursuant to s 84(1) of the Property Law Act1958 (“the Act”) that the restrictive covenant, contained in Instrument of Transfer No. 1086247 registered on the property situate and known as 629 Whitehorse Road, Surrey Hills, Victoria, being the land more particularly described in Certificate of Title Volume 5152 Folio 351, and being Lot 3 on Plan of Subdivision 007993 (“the Land”), be modified.

On 11 June 2013, I made orders for notice of the application to be given to the registered proprietors of four properties having the benefit of the covenant. They are the successors in title of transferees that took their respective lots after the subject land was transferred out of the parent tile. These included the mayor, counsellors and citizens of the City of Camberwell, now the Boroondara City Council (“the Council”).

In the usual way, the notice required that persons entitled to an estate or interest in land in the subdivision who may be entitled to enforce the covenant and to oppose the application give written notice to the plaintiff’s solicitors and to the Prothonotary.

The Council gave such notice, as did one Mr Peter Tibballs, of 4 Smythe Avenue, Mont Albert,[1] two doors up from the…

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 Re Comdain Homes Pty Ltd

Details

AGLC: Re Comdain Homes Pty Ltd [2023] VSC 487
Case: [2013] VSC 487
Decision Date: 11 September 2013

CaseChat Overview and Summary

Comdain Homes Pty Ltd sought to modify a restrictive covenant on their property, which was originally intended to restrict the erection of any building other than one house to be used solely as a private dwelling or as bank premises. The applicants aimed to modify the covenant to permit the use of the property as a display home for two years. The application was heard in the Victorian Civil and Administrative Tribunal, which subsequently transferred the matter to the Supreme Court of Victoria for determination.

The primary legal issue before the court was whether the proposed modification of the restrictive covenant would substantially injure the persons entitled to the benefit of the covenant. The court had to consider the original purpose of the covenant, the nature of the proposed modification, and the potential impact on the rights of other parties benefiting from the covenant. The court was required to balance the interests of the applicants against the rights of those who would be adversely affected by the modification.

The court found that the modification of the restrictive covenant would not substantially injure the persons entitled to the benefit of the covenant. The court reasoned that the proposed use of the property as a display home for two years was temporary and would not undermine the fundamental purpose of the covenant, which was to maintain the property as a private dwelling or bank premises. The court noted that the modification would not prejudice the rights of neighbouring properties or alter the character of the area in a significant way. Given these considerations, the court concluded that the modification would not cause substantial injury to the beneficiaries of the covenant.

The court granted the application to modify the restrictive covenant, allowing Comdain Homes Pty Ltd to use the property as a display home for two years. This decision was based on the court's finding that the modification would not substantially injure the persons entitled to the benefit of the covenant, as provided under section 84(1)(c) of the Property Law Act 1958. The court's decision recognises the need to balance the rights of property owners with the changing nature of property use in contemporary society.

Orders