Legal Research
Cases
Re EAPE (Holdings) Pty Ltd

Re EAPE (Holdings) Pty Ltd

Case [2019] VSC 242 15 April 2019

No judgment structure available for this case.

Type to search within this case.

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PROPERTY LIST

S ECI 2018 01831

IN THE MATTER of an application pursuant to section 84 of the Property Law Act 1958 for the modification of a restrictive covenant
- and -
IN THE MATTER of an application for the modification of the restriction arising under the covenant in transfer of land registered no. P878974A dated 26 June 1990 affecting the land at 1 Bridle Place, Pakenham, being lot 266 on Plan of Subdivision no. 212290W and being the land in Certificate of Title Volume 11512 Folio 959 by:
EAPE (HOLDINGS) PTY LTD (ACN 081 259 789)	Plaintiff

---

JUDGE:	Lansdowne As J
WHERE HELD:	Melbourne
DATE OF HEARING:	7 March 2019
DATE OF JUDGMENT:	15 April 2019
CASE MAY BE CITED AS:	Re EAPE (Holdings) Pty Ltd
MEDIUM NEUTRAL CITATION:	[2019] VSC 242

---

REAL PROPERTY – Restriction to ‘one private dwelling house’ in covenant – Whether modification to allow up to three dwellings would cause substantial injury to beneficiaries – Precedential effect – Impact on adjoining benefited land – Alternative development as a rooming house – Whether alternative development a genuine proposal – Whether a rooming house is permitted by the covenant – Held: yes – Consequent comparison of the benefits conferred by the restriction with those that would remain after modification – Modification granted – Property Law Act 1958 (Vic) s 84 (1)(c)

WORDS AND PHRASES – ‘one private dwelling house’ – Downie v Lockwood [1965] VR 258; Longo Investments Pty Ltd [2003] VSC 37; Prowse v Johnstone & Ors [2012] VSC 4 considered.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr W Rimmer	G E Law Services

TABLE OF CONTENTS

Introduction......................................................................................................................................... 1

Background......................................................................................................................................... 2

The covenant.................................................................................................................................. 2
The Land......................................................................................................................................... 4
Previous applications................................................................................................................... 6
Objection to this application....................................................................................................... 8

Legal principles.................................................................................................................................. 9

Discussion.......................................................................................................................................... 14

Proposal for three dwellings..................................................................................................... 15
Objection to the three extra dwellings proposal.................................................................... 15
Consideration of these objections............................................................................................. 16
Materials restriction.......................................................................................................... 16
Amenity objections............................................................................................................ 17
Precedent............................................................................................................................ 20
Summary............................................................................................................................. 21

Rooming house proposal.......................................................................................................... 21
A genuine alternative proposal?..................................................................................... 23
Is a rooming house permitted under the existing covenant?..................................... 26
Comparison of injury........................................................................................................ 31

Conclusion on substantial injury.............................................................................................. 33
Discretion..................................................................................................................................... 34

Conclusion......................................................................................................................................... 34

HER HONOUR:

Introduction

The plaintiff is the registered proprietor of 1 Bridle Place, Pakenham. It seeks to modify a restrictive covenant so as to increase the number of permitted dwellings from one to three, and to reduce the proportion of each dwelling that is required to be constructed of brick or stone, or similar material. The application is made pursuant to s 84(1)(c) of the Property Law Act 1958 (Vic) (‘PLA’). I will come to the requirements of that paragraph in detail shortly, but in essence it allows the Court to modify a restriction in a covenant if the Court considers that to do so will not substantially injure the beneficiaries of the restriction. The law that the Court must apply to determine such an application, and the range…

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 EAPE (Holdings) Pty Ltd

Details

AGLC: Re EAPE (Holdings) Pty Ltd [2019] VSC 242
Case: [2019] VSC 242
Decision Date: 15 April 2019

CaseChat Overview and Summary

In the case of Re EAPE (Holdings) Pty Ltd, the primary issue was whether a covenant restricting a property to be used as 'one private dwelling house' could be modified to allow up to three dwellings. The matter was heard in the Supreme Court of Victoria. The dispute arose from a proposal to modify the covenant on a property that was part of a larger estate. The modification was sought by the current owner, EAPE (Holdings) Pty Ltd, to allow for the construction of up to three dwellings on the property.

The court had to determine whether the proposed modification would cause substantial injury to the beneficiaries of the covenant, whether the modification would have a prejudicial effect on the adjoining benefited land, and whether the alternative proposal to develop the property as a rooming house was genuine and permissible under the covenant. The court considered whether the modification would substantially alter the benefits intended to be conferred by the covenant and whether the alternative development as a rooming house was a genuine proposal. The court also needed to determine whether a rooming house was permitted by the terms of the covenant.

The court concluded that the proposed modification would not cause substantial injury to the beneficiaries and would not have a prejudicial effect on the adjoining benefited land. The court found that the alternative proposal to develop the property as a rooming house was a genuine proposal and was permissible under the covenant. The court held that the covenant could be modified to allow up to three dwellings, and granted the application under the Property Law Act 1958 (Vic) section 84 (1)(c). The court's decision was influenced by previous cases such as Downie v Lockwood, Longo Investments Pty Ltd, and Prowse v Johnstone & Ors, which dealt with similar issues of covenant modification and interpretation.

Orders