Re Hammond - [2015] VSC 608

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2015 04144

IN THE MATTER of an application under s 84 of
the Property Law Act 1958 for the modification of
a restrictive covenant by:

PHILIP MAXWELL HAMMOND and ANNETTE CORALIE HAMMOND

Plaintiffs

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JUDGE:	Mukhtar AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	20 October 2015
DATE OF JUDGMENT:	5 November 2015
CASE MAY BE CITED AS:	Re Hammond
MEDIUM NEUTRAL CITATION:	[2015] VSC 608

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REAL PROPERTY—Restrictive covenant— Principles of construction — Extrinsic evidence to construe instruments lodged in the Torrens registration system — Prohibition on “any building other than a private dwelling house of stone or brick”—Proper construction—Whether “a” private dwelling house means “one” private dwelling house”—Proposal to demolish existing dwelling and construct large dwelling containing two dwellings—Intention discernible from other covenants in subdivision permitting “houses”—No substantial injury to beneficiaries of covenant—Application granted to modify covenant to enable ‘private dwelling houses’—Property Law Act 1958 s 84(1)(c)

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr W Rimmer of counsel	Aughtersons Lawyers Pty Ltd
No objectors appeared on the application

HIS HONOUR:

In 1912, a purchaser of land in a residential subdivision in Brighton made a restrictive covenant not to erect any building on the land other than ‘a’ private dwelling house. Can the covenanter build two private dwelling houses or should the phrase ‘a private dwelling house’ be construed as meaning ‘one private dwelling house’? The expression is susceptible of more than one meaning.

In an application by the plaintiffs as successors to the covenantor ― an application not opposed by any covenantee ― I determined ex tempore that the intention as discernible from a strong context created by the absence of such a burden on the other nearby lots in the subdivision, was not to limit the construction to one dwelling. My reasons now follow. But two matters need to be stated at the outset.

First, the plaintiffs’ application was not for a declaration about the true construction of the restriction under s 84(2) of the Property Law Act. Rather, it was an application under s 84(1)(c) of the Act, supported by expert evidence from a town planner, to modify the covenant to remove the form of singular expression in the covenant and replace it plurally with ‘any buildings other than private dwelling houses’ on the ground that such a modification would not substantially injure the persons entitled to the benefit of the restriction. Although the question of construction was discrete, it was really a means to sustain a case for modification. Consonant with the application, the order as made by the Court was for a modification on statutory grounds.

Secondly, and more importantly, this determination is a product of some facts peculiar to this small subdivision that informed the construction of the covenant. This Court deals frequently with applications concerning single dwelling covenants over residential land in which covenanters seek to discharge or modify single dwelling covenants. Such applications are increasing…

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 Hammond

Details

AGLC: Re Hammond [2015] VSC 608
Case: [2015] VSC 608
Decision Date: 5 November 2015

CaseChat Overview and Summary

The matter of Re Hammond involved a dispute concerning the interpretation of a restrictive covenant in the Torrens registration system. The applicant sought to modify the restrictive covenant in the title of the property to allow the construction of two private dwelling houses, rather than a single private dwelling house of stone or brick as currently stated. The application was made under the Property Law Act 1958, specifically section 84(1)(c), which permits the modification of a restrictive covenant if the alteration is reasonable and does not cause substantial injury to the beneficiaries of the covenant.

The primary legal issue before the court was whether the restrictive covenant, which prohibited “any building other than a private dwelling house of stone or brick,” meant one private dwelling house or multiple private dwelling houses. The court had to consider the principles of construction, including whether extrinsic evidence could be used to determine the meaning of the covenant and whether the proposed modification would cause substantial injury to the beneficiaries of the covenant.

The court concluded that the restrictive covenant was properly construed to mean one private dwelling house of stone or brick, rather than multiple private dwelling houses. The court found that the intention behind the covenant was consistent with other covenants in the subdivision that permitted “houses.” Moreover, the proposed modification, which involved demolishing the existing dwelling and constructing a large dwelling containing two dwellings, would not cause substantial injury to the beneficiaries of the covenant. Accordingly, the court granted the application to modify the covenant to enable the construction of “private dwelling houses” instead of just one private dwelling house.

The court’s decision provides guidance for property developers and owners in relation to the interpretation and modification of restrictive covenants in the Torrens registration system. The court’s approach to the construction of the covenant, including the use of extrinsic evidence and the consideration of the intention behind the covenant, will be of particular interest to practitioners. The final order of the court was to modify the restrictive covenant to permit the construction of private dwelling houses.

Orders