Re Katherine Scerri and Ors (as Legal Personal Representatives of Giovanna Scicluna, Deceased)

The case before the court was an application by Katherine Scerri and others, as legal personal representatives of the deceased Giovanna Scicluna, to modify a restrictive covenant on a parcel of land. The respondents, who stood to benefit from the covenant, opposed the modification. The dispute was heard and determined by the Supreme Court of Victoria. The primary issue before the court was whether the applicants had discharged their burden of proving that the modification of the restrictive covenant would not substantially injure the respondents. The applicants sought to increase the number of dwelling houses permitted on the land from one to three, in accordance with the current use and character of the area.

The court considered the legal principles applicable to the modification of restrictive covenants, particularly the requirement that the applicant must demonstrate that those with the benefit of the covenant will not be substantially injured by the modification. The court referred to the case of Oostemeyer v Powell, where it was held that the applicant must provide specific plans and evidence to support their application. The applicants in the current case had failed to provide specific plans, and there were no objectors to the modification. The court concluded that the applicants had not discharged their burden of proof and dismissed the application.

The court's decision was based on the lack of evidence provided by the applicants to support their claim that the modification would not substantially injure the respondents. The absence of specific plans and the lack of objection from the respondents meant that the applicants had not met the required standard of proof. The court's ruling was in line with the principles established in Oostemeyer v Powell, which emphasise the importance of detailed evidence in applications to modify restrictive covenants. The application to modify the restrictive covenant was therefore refused.