Re Hunt

Case [2017] VSC 779 18 December 2017

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PROPERTY LIST

S CI 2017 01667

IN THE MATTER of the Property Law Act 1958 (Vic), section 84(2)

- and –

IN THE MATTER of an application by the plaintiff NICOLE ELIZABETH HUNT for a declaration that the land known as Lot 1 of Title Plan 4333891G being the land more particularly described in Certificate of Title Volume 3550 Folio 936 is not affected by any purported restriction contained in Instrument of Transfer No 665334

IN THE MATTER of an application by:

NICOLE ELIZABETH HUNT

Plaintiff

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JUDGE:	Lansdowne AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	8 June 2017 and further submissions received 27 June 2017, further evidence received 7 and 15 December 2017.
DATE OF JUDGMENT:	18 December 2017
CASE MAY BE CITED AS:	Re Hunt
MEDIUM NEUTRAL CITATION:	[2017] VSC 779

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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 – Whether covenant part of a building scheme – Whether sufficient notice of such a building scheme appears on the Register of Titles – Held: the covenant does not identify any benefited land and so its benefit was personal to the transferor and his executor, both now deceased – Unlikely that the covenant was part of a building scheme, but in any event no sufficient notice of such a building scheme appears on the Register and so the successor in title to the original covenantor cannot be bound– declaration made that land not affected by the covenant – Property Law Act 1958 (Vic), s 84(2) – Re Dennerstein [1963] VR 688 – Fitt v Luxury Developments Pty Ltd [2000] VSC 258 – Vrakas v Mills [2006] VSC 463 – Westfield Management Limited v Perpetual Trustee Co Limited (2007) 233 CLR 528 – Beman Pty Ltd v Boroondara City Council [2017] VSC 207 considered.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr N Dragojlovic	Hall & Wilcox, Lawyers

TABLE OF CONTENTS

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

Procedural background..................................................................................................................... 2

Facts....................................................................................................................................................... 5

Legal principles.................................................................................................................................. 7

Annexation of benefit to land remaining in the parent title................................................... 8
Building scheme.......................................................................................................................... 10
Statutory provisions extending benefit or burden................................................................. 15

Discussion.......................................................................................................................................... 16

Annexation of benefit to land.................................................................................................... 16
Building scheme.......................................................................................................................... 18
Response by the Registrar of Titles................................................................................ 18
Elliston v Reacher applied............................................................................................... 19
History of transfers from parent titles............................................................................ 21

Conclusion......................................................................................................................................... 23

HER HONOUR:

Introduction

The plaintiff became the registered proprietor of land known as 12 Haverbrack Ave, Malvern, more particularly described in Certificate of Title Volume 3550 Folio 936 (Subject Land) on 4 May 2016. She wishes to subdivide the Subject Land. The title to the Subject Land notes as an encumbrance a restrictive covenant (Covenant) that if enforceable against the plaintiff would prevent the proposed subdivision because it allows the construction of one dwelling only on the Subject…

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 Hunt

Details

AGLC: Re Hunt [2017] VSC 779
Case: [2017] VSC 779
Decision Date: 18 December 2017

CaseChat Overview and Summary

In the matter of Re Hunt, the applicant, the current owner of a parcel of land, sought a declaration that the land was not affected by any purported restriction in a covenant. The respondent, the original covenantor's executor, did not appear or respond to the application. The dispute was heard in the Supreme Court of Victoria, Equity Division. The applicant sought to have the restrictive covenant declared invalid, arguing that the covenant did not identify any benefited land and therefore its benefit was personal to the transferor and his executor, both now deceased. The applicant also argued that the covenant was not part of a building scheme and that there was insufficient notice of such a scheme on the Register of Titles. The respondent did not contest the application.

The legal issues before the court were whether it was appropriate to proceed with the application ex parte, whether the benefit of the covenant was annexed to land, and whether the covenant was part of a building scheme. The court considered the relevant case law, including Re Dennerstein, Fitt v Luxury Developments Pty Ltd, Vrakas v Mills, Westfield Management Limited v Perpetual Trustee Co Limited, and Beman Pty Ltd v Boroondara City Council. The court found that the covenant did not identify any benefited land and so its benefit was personal to the transferor and his executor, both now deceased. The court also found that it was unlikely that the covenant was part of a building scheme, but in any event, there was insufficient notice of such a scheme on the Register of Titles. Therefore, the successor in title to the original covenantor could not be bound by the covenant.

The court held that it was appropriate to proceed with the application ex parte as the respondent had not appeared or responded to the application. The court made the declaration sought by the applicant that the land was not affected by the covenant. The court noted that the covenant was no longer binding on the applicant and that the applicant was free to use the land as they saw fit. The court also noted that the case highlighted the importance of ensuring that restrictive covenants are properly drafted and that the benefited land is clearly identified. This would ensure that the covenant can be enforced and that the benefit of the covenant is properly annexed to the benefited land.

Orders