Re Hammond

The case of Re Hammond involved a dispute concerning the interpretation of a restrictive covenant in relation to property located within a subdivision. The applicant sought to modify the covenant to allow the construction of a larger dwelling, which would include two separate private dwelling houses, on land currently occupied by an existing dwelling. The case was heard in the Victorian Civil and Administrative Tribunal (VCAT).

The legal issues before VCAT were whether the restrictive covenant, which prohibited “any building other than a private dwelling house of stone or brick,” meant one private dwelling house or allowed for multiple private dwelling houses. The applicant argued that the covenant should be construed to permit the construction of two private dwelling houses, while the objectors contended that the covenant only allowed for a single private dwelling house. The tribunal had to consider the proper construction of the covenant, including the use of extrinsic evidence, to determine the true intention of the parties involved.

VCAT determined that the covenant should be construed to allow for “a” private dwelling house, meaning more than one could be built, based on the other covenants in the subdivision that permitted “houses.” The tribunal found that the intention of the parties was discernible from these other covenants and that there would be no substantial injury to the beneficiaries of the covenant by permitting the construction of two private dwelling houses. Therefore, the tribunal granted the application to modify the covenant under section 84(1)(c) of the Property Law Act 1958.

The tribunal ordered that the restrictive covenant be modified to allow for the construction of two private dwelling houses on the land in question, subject to certain conditions being met. This decision highlights the importance of considering the broader context of covenants within a subdivision when interpreting the meaning of restrictive covenants in property law.