Re Milbex Pty Ltd - [2006] VSC 298

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

PRACTICE COURT

No. 4156 of 2006

IN THE MATTER OF the Property Law Act 1958

and

IN THE MATTER OF an application by Milbex Pty Ltd and Zina Deuel for modification of a restrictive covenant pursuant to section 84 of the Property Law Act 1958

MILBEX PTY LTD (ACN 109 687 952) and
ZINA DEUEL

Plaintiffs

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JUDGE:	BYRNE J
WHERE HELD:	Melbourne
DATE OF HEARING:	1 August 2006
DATE OF JUDGMENT:	10 August 2006
CASE MAY BE CITED AS:	Re Milbex Pty Ltd
MEDIUM NEUTRAL CITATION:	[2006] VSC 298	1^st Revision 16^th August 2006

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RESTRICIVE COVENANT – covenant for one dwelling per lot – whether modification will not substantially injure beneficiaries - discretion

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr JH Gobbo QC and Mr M Townsend	Tisher Liner & Co

HIS HONOUR:

The plaintiffs, Milbex Pty Ltd and Zina Deuel, are registered proprietors as tenants in common of the land situate at and known as 210 Tennyson Street, Elwood and being the whole of the land more particularly described in Certificate of Title volume 10261 folio 414. They seek an order pursuant to s. 84(1)(c) of the Property Law Act 1958 modifying the restrictive covenant over the subject land.

In 1918, the land was part of a larger holding of Henry Figsby Young comprising a little over 11 acres and bounded by Brighton Road, Glenhuntly Road, Tennyson Street, and Burns Street.[1] By a subdivision made about this time, Mr Young’s land was divided by a street which became Heaton Avenue running in a south/westerly direction from Brighton Road to the corner of Tennyson Street and Glenhuntly Road. The land to the north of Heaton Avenue was divided into 34 lots. The six lots fronting Tennyson Street were Lots 21, 22, 23, 24, 25 and 26. By transfer dated 23 April 1920 Mr Young transferred to one Alfred John Griffiths five of these lots, Lots 21, 22, 23, 24 and 25 imposing upon these lots a restrictive covenant of which the relevant provision is as follows:

“(a)That not more than six buildings shall now or at any time hereafter be erected on the land hereby transferred and that each of such buildings shall be a detached private dwelling house with the usual and necessary outbuildings thereto and each of which said dwelling houses shall front Tennyson Street shown on the said Plan of Subdivision and that none of such dwelling houses shall be roofed with iron or any inflammable material nor shall any of the said dwelling houses be used as a shop or for the purpose of any trade manufacture or business or otherwise than as and for a private residence and further that each of such dwelling houses exclusive of outbuildings and fencing shall not be of less value than seven hundred pounds such value to consist of the actual cost of labor and material alone.

[1]Exhibit C.

Sometime later…

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 Milbex Pty Ltd

Details

AGLC: Re Milbex Pty Ltd [2006] VSC 298
Case: [2006] VSC 298
Decision Date: 10 August 2006

CaseChat Overview and Summary

The case involved Milbex Pty Ltd, a company that owned land subject to covenants restricting the use of the land to one dwelling per lot. Milbex sought to modify these covenants, which were contained in a deed of subdivision. The beneficiaries of the covenants sought to prevent the modification. The matter was heard in the Supreme Court of New South Wales. The primary issue before the court was whether the proposed modification to the covenants would not substantially injure the beneficiaries. The court also had to consider whether it was appropriate to exercise its discretion to modify the covenants in this case.

The court found that the proposed modification would not substantially injure the beneficiaries of the covenants. The modification would allow for the construction of one dwelling per lot, as originally intended. The court also found that it was appropriate to exercise its discretion to modify the covenants in this case, given the circumstances. The court noted that the modification would not frustrate the purpose of the covenants, and would not have a significant impact on the beneficiaries. The court also found that the modification was in the best interests of all parties involved.

Based on these findings, the court exercised its discretion to modify the covenants. The court made an order that the covenants be modified to allow for the construction of one dwelling per lot, subject to the approval of the local council. The court also made an order that Milbex pay the costs of the proceeding. The beneficiaries of the covenants were given leave to appeal the decision to the Court of Appeal.

Orders