JUDGE:	Mukhtar AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	22 February 2016
DATE OF JUDGMENT:	14 November 2016
CASE MAY BE CITED AS:	Re Morihovitis
MEDIUM NEUTRAL CITATION:	[2016] VSC 684

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REAL PROPERTY ― Restrictive covenant ― Restriction to ‘not more than one dwelling house and outhouses’ ― Burdened land contiguous to unburdened land ― Common ownership ― Proposal to develop both lots as one ― Proposal to erect three level block of 21 apartments ― Presence of some multi-unit development in the greater neighbourhood ― Whether modification to covenant to allow apartment development of proposed larger scale ‘will not substantially injure the persons entitled to the benefit of the restriction’ ― No objectors joined as parties ― Scale and imposition of proposed development exceeds degree of changes in neighbourhood ― Onus not discharged ― Application refused ― Property Law Act 1958 (Vic), s 84(1)(c)

REAL PROPERTY ― Application to remove restrictive covenant ― Beneficiaries expressing opposition out of court but not willing to attend court and be joined as defendants ― Function of the Court in unopposed applications ― Plaintiff’s onus of proof ― Exposure of facts and opinion from town planner on ultimate issue ― Adoption of facts by Court ― Non-adoption of opinion from underlying facts

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D P Lloyd	Aughtersons Lawyers Pty Ltd
No appearance by or on behalf of any beneficiaries of the covenant

HIS HONOUR:

The plaintiff Andrew Morihovitis is the sole registered proprietor of residential land at 9 Highlands Road in Thomastown. He was so registered in June 2014. The land is a rectangular shaped lot with a street frontage of about 15 metres and a depth of 150 metres, creating an area of almost 700 square metres. A single storey dwelling is erected on the land. He also owns the adjoining land at 11 Highlands Road which appears to be of the same dimensions and area, and also has a single storey dwelling erected on it.

Mr Morihovitis proposes to erect a substantial block of apartments straddled across both lots of land. The development proposal is a three-level building. There is no underground level. There are to be nine apartments having one bedroom, and 12 apartments having two bedrooms. It is said that the bulk of the proposed development will be on 11 Highlands Road. Judging by the detailed plans that are before the Court, this appears to be a bulky or imposing unitary development that will spread itself over both lots. True it is, there are more apartments in the building on the no. 11 side — which will have 12 of the 21 apartments and 9 car parking spaces — whereas no. 9 will have…

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 Morihovitis

Details

AGLC: Re Morihovitis [2016] VSC 684
Case: [2016] VSC 684
Decision Date: 14 November 2016

CaseChat Overview and Summary

The case of Re Morihovitis involved the applicant seeking to modify a restrictive covenant on a property in Victoria. The restrictive covenant limited the use of the land to not more than one dwelling house and outhouses. The applicant proposed to develop both the burdened land and the adjoining unburdened land as a single site, constructing a three-level block of 21 apartments. The Court was tasked with determining whether modifying the covenant to allow for the proposed apartment development would substantially injure the persons entitled to the benefit of the restriction.

The primary legal issue before the Court was whether the modification to the covenant, permitting the larger scale development, would substantially injure the beneficiaries of the restriction. The Court needed to assess the degree of change in the neighbourhood and whether the proposed development exceeded that change. Additionally, the Court had to consider the onus of proof on the applicant to demonstrate that the modification would not substantially injure the beneficiaries, particularly since no objectors had joined as parties to the application.

The Court found that the scale and nature of the proposed development exceeded the degree of changes seen in the neighbourhood, thus substantially injuring the beneficiaries of the restriction. The applicant had not discharged the onus of proof necessary to modify the covenant. The Court adopted the facts presented but did not adopt the opinion of the town planner on the ultimate issue, as the underlying facts did not support the opinion that the modification would not substantially injure the beneficiaries. Consequently, the Court refused the application to modify the restrictive covenant.

The Court's decision was grounded in the statutory requirements of the Property Law Act 1958 (Vic), section 84(1)(c), which outlines the conditions under which a restrictive covenant may be modified. The applicant's failure to meet the onus of proof led to the refusal of the application. The Court emphasised the importance of the onus being on the applicant to demonstrate that modifying the covenant would not substantially injure the beneficiaries, particularly in the absence of objectors who could provide evidence to the contrary.

Orders