Re Ferraro - [2021] VSC 166

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
PROPERTY LIST

S ECI 2020 04752

IN THE MATTER of an application pursuant to s 84 of the Property Law Act 1958 (Vic)

- and –

IN THE MATTER of an application for the discharge of the restrictions arising in Instrument of Transfer 0551627 and Instrument of Transfer 657637 affecting the land at 43 Linda Crescent, Hawthorn, more particularly described as the land in Certificate of Title Volume 04583 Folio 551 by:

ANN-MARIE FERRARO

Plaintiff

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JUDGE:	Matthews AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	25 March 2021
DATE OF JUDGMENT:	12 April 2021
CASE MAY BE CITED AS:	Re Ferraro
MEDIUM NEUTRAL CITATION:	[2021] VSC 166

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REAL PROPERTY – Restrictive covenant – Application for a declaration that land not affected by any purported restriction in the covenant – Whether appropriate to proceed ex parte – Whether benefit of the covenant is annexed to land – Held: the covenant does not identify any benefited land and so its benefit was personal to the transferors – Appropriate to proceed ex parte – Declaration made that land not affected by the covenant – Property Law Act 1958 (Vic), s84(2) – Beman Pty Ltd v Boroondara City Council [2017] VSC 207 – Re Hunt [2017] VSC 779.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M Townsend	HWL Ebsworth

HER HONOUR:

Introduction

The plaintiff became the registered proprietor of land known as 43 Linda Crescent, Hawthorn, more particularly described in Certificate of Title Volume 04583 Folio 551 (‘Subject Land’) on 23 January 2019. The title to the Subject Land notes as encumbrances two restrictive covenants which, if enforceable against the plaintiff, would prevent her from carrying out her proposed development involving partial demolition of and additions and alterations to the existing dwelling on the Subject Land.

This proceeding concerns the plaintiff’s application for a declaration that the covenants affecting the Subject Land are invalid for want of any benefiting land being readily identifiable.

At the first return of the application on 29 January 2021, the plaintiff sought to have the matter determined without notice being given to potential contradictors. I noted this in paragraph D of ‘other matters’ in the orders made that day, and indicated that the orders allowed a framework for the appropriateness of that course to be considered. I made orders on that day for the plaintiff to file any further evidence and an outline of submissions by 4.00 pm on 15 March 2021 and for the proceeding to be listed for hearing on 25 March 2021 to deal with the matter raised in paragraph D of ‘other matters’ and, if appropriate, for the hearing of the substantive proceeding. No orders were therefore made at that stage for notice to be given pursuant to s 84(3) of the Property Law Act 1958 (Vic) (‘Act’).

The plaintiff relies on the following affidavits and the exhibits thereto:

(a) affidavit of David Boruch Zvi…

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 Ferraro

Details

AGLC: Re Ferraro [2021] VSC 166
Case: [2021] VSC 166
Decision Date: 12 April 2021

CaseChat Overview and Summary

The matter in Re Ferraro involved an application for a declaration that certain land was not affected by a restrictive covenant. The application was heard by the Supreme Court of Victoria. The primary issue before the court was whether it was appropriate to proceed with the application ex parte, without the presence of the opposing party. Additionally, the court had to determine whether the benefit of the restrictive covenant was annexed to any particular land, and thus whether the covenant was binding on the applicant.

The court considered whether the covenant identified any specific benefited land, as this would determine whether the benefit of the covenant was annexed to land, or if it remained a personal benefit to the transferors. In examining the wording of the covenant, the court found that it did not identify any benefited land, and thus the benefit of the covenant was personal to the transferors. The court found it appropriate to proceed with the application ex parte, given the nature of the application and the lack of prejudice to any party. Consequently, the court made a declaration that the land in question was not affected by the restrictive covenant.

The Supreme Court of Victoria ruled that the benefit of the restrictive covenant was personal to the transferors, and did not apply to the land in question. The court made a declaration that the land was not affected by the restrictive covenant, and it was appropriate to proceed with the application ex parte. This decision is consistent with the provisions of the Property Law Act 1958 (Vic), s84(2), as well as the cases of Beman Pty Ltd v Boroondara City Council [2017] VSC 207 and Re Hunt [2017] VSC 779. The court's decision provides clarity on the application of restrictive covenants in Victoria and the circumstances in which they may be deemed personal rather than annexed to land.

Orders