Re Djurovic - [2010] VSC 348

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. S CI 2010 02834

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

and

IN THE MATTER of an application for the modification or removal of the restrictive covenant contained in instrument of transfer no. 1731111 registered in the Land Titles Office in the Register Book and imposed upon the land more particularly described in certificate of title volume 9560 folio 774 by:

SRDJAN DJUROVIC and ADAMANTINI DJUROVIC

Applicants

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JUDGE:	MUKHTAR AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	23 July, 10 August 2010
DATE OF JUDGMENT:	17August 2010
CASE MAY BE CITED AS:	Re Djurovic
MEDIUM NEUTRAL CITATION:	[2010] VSC 348

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REAL PROPERTY – Restrictive covenant – Discharge or modification – Prohibition of more than one dwelling on lot – Whether covenant ought to be deemed obsolete – Whether discharge or modification would cause substantial injury to covenantee – Modification of covenant to avoid injury – Property Law Act 1958 s 84(1).

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APPEARANCES:	Counsel	Solicitors
For the applicants	Ms L. Harrison	Robyn Calder

HIS HONOUR:

The applicants, Srdjan Djurovic and Adamantini Djurovic, are the registered proprietors of the land known as 8 Liddesdale Avenue, Frankston South. It is a vacant block of land in a residential area. Their land was formerly known as Lot 58 on a registered plan of subdivision (number 12936) which together with an adjoining registered plan of subdivision (number 12937) comprised the whole area in the parent title, subdivided into about 178 lots. The area of the parent title is approximately 59 acres. The applicants’ land is located towards the middle of the parent title.

One of the encumbrances noted on the applicants’ title is covenant 1731111. The applicants’ land (Lot 58) together with adjoining Lots 59 and 60 was transferred on 2 May 1939 to the applicants’ predecessors in title and contained the following restrictive covenant (with my added underlining to show the relevant part) –

... COVENANT with the [transferor] and its successors and transferees registered proprietor or proprietors for the time being of the balance of the land comprised in the [parent title] that she or they will not at any time hereafter excavate dig carry away or permit to be excavated dug carried away or removed any earth clay gravel stone or sand from any of the said Lots hereby transferred except for the purpose of excavating for the foundations of any building or buildings to be erected on any of the said Lots or for the purpose of constructing entrances to any of the said Lots AND that the said Lots hereby transferred shall not be used for any purposes other than for residential purposes and that not more than one messuage or dwelling house with suitable outhouses shall at any time be erected on any of the said Lots hereby transferred …

Out of the 178 original lots on the parent title, there are 57 original lots which have 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 Djurovic

Details

AGLC: Re Djurovic [2010] VSC 348
Case: [2010] VSC 348
Decision Date: 17 August 2010

CaseChat Overview and Summary

The parties involved in the dispute were the owners of a parcel of land and the neighbouring property owner. The dispute centred on a restrictive covenant that prohibited the construction of more than one dwelling on the lot. The case was heard in the Supreme Court of Victoria. The central legal issues the court had to address were whether the restrictive covenant was obsolete and whether its discharge or modification would cause substantial injury to the covenantee. Additionally, the court had to consider if there were circumstances under which the covenant could be modified to avoid causing injury to the covenantee.

The court examined the restrictive covenant in light of the property's current use and the surrounding environment. It determined that the covenant was not obsolete and that its enforcement was necessary to preserve the character and value of the neighbouring property. The court also found that the covenantee would suffer substantial injury if the covenant were discharged or modified. However, the court recognised that modifying the covenant to allow for a single family dwelling, rather than prohibiting any additional dwellings, could avoid causing injury to the covenantee. The court relied on section 84(1) of the Property Law Act 1958 to modify the covenant accordingly.

In its judgment, the court modified the restrictive covenant to permit the construction of a single family dwelling on the lot, while still prohibiting the construction of more than one dwelling. This modification was made to avoid causing substantial injury to the covenantee while preserving the character and value of the neighbouring property. The court's decision provided a balanced approach to the enforcement of restrictive covenants, recognising the need to adapt to changing circumstances while protecting the interests of all parties involved.

Orders