Re Nazari - [2024] VSC 215

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
PROPERTY LIST

S ECI 2023 03198

IN THE MATTER of an application pursuant to section 84(1)(c) of the Property Law Act 1958 (Vic) for the modification of a restrictive covenant

- and –

IN THE MATTER of an application for the modification of the restriction arising under the covenant contained in Instrument of Transfer M805798R registered in the Register Book at the Office of Titles burdening the land known as 5-6 Malanie Close, Narre Warren North, Victoria, more particularly described as Lot 9 on Plan of Subdivision 206280K and being the land in Certificate of Title Volume 09734 Folio 086, by:

BETWEEN:

ABDUL ALI NAZARI

Plaintiff

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JUDGE:	Irving AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	16 April 2024
DATE OF JUDGMENT:	3 May 2024
CASE MAY BE CITED AS:	Re Nazari
MEDIUM NEUTRAL CITATION:	[2024] VSC 215

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PROPERTY LAW — Section 84 of the Property Law Act 1958 (Vic) – Application for modification of restrictive covenant – Substantial injury under s 84(1)(c) of Property Law Act 1958 (Vic) – Principles for assessing whether beneficiary of covenant would likely suffer substantial injury on modification – Application for modification of restrictive covenant granted.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M Townsend of counsel	MPW Lawyers

TABLE OF CONTENTS

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

Background......................................................................................................................................... 2

The Subject Land and its history....................................................................................... 2
The Covenant....................................................................................................................... 3
The plaintiff’s proposal and application.......................................................................... 4
Brief procedural history...................................................................................................... 7

Evidence............................................................................................................................................... 9

The Easton Report............................................................................................................... 9
Purpose and intent of the Covenant............................................................................... 10
Mr Easton’s approach to the assessment of substantial injury................................... 10
The proposal.......................................................................................................... 10
An alternate complying development.............................................................. 11
Planning and building controls.......................................................................... 11
The neighbourhood.............................................................................................. 12

Summary of Mr Easton’s opinion................................................................................... 15
Mr Easton’s conclusion..................................................................................................... 18
Mr Nazari’s evidence........................................................................................................ 18
Mr Watson’s evidence....................................................................................................... 19

Applicable principles.................................................................................................................. 19
The objectors’ submissions........................................................................................................ 22
The plaintiff’s submissions........................................................................................................ 23
Consideration.............................................................................................................................. 25
Conclusion.................................................................................................................................... 27

HIS HONOUR:

Introduction

Abdul Ali Nazari (plaintiff) is the registered proprietor of the land known as 5- 6 Malanie Close, Narre Warren North, Victoria, more particularly described as Lot 9 on Plan of Subdivision 206280K, being the land in Certificate of Title Volume 09734 Folio 086 (Subject Land).

The plaintiff has filed an originating motion seeking orders pursuant to s 84(1)(c) of the Property Law Act 1958 (Vic) (PLA) that the covenant burdening the Subject Land be modified.

The plaintiff relied on the following materials:

(a) affidavit of Myles Patrick Watson, solicitor for the plaintiff, sworn 20 July 2023 (First Watson affidavit);

(b) affidavit of Abdul Ali Nazari, sworn 21 July 2023 (First Nazari affidavit);

(c) affidavit of Myles Patrick Watson, solicitor for the plaintiff, sworn 6 September 2023 (Second Watson affidavit);

(d) affidavit of Robert Walter Easton, sworn 4 October 2023, exhibiting Mr Easton’s expert report;

(e) affidavit of Myles Patrick Watson, solicitor for the plaintiff, sworn 16 October 2023 (Third Watson affidavit);

(f) affidavit of…

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 Nazari

Details

AGLC: Re Nazari [2024] VSC 215
Case: [2024] VSC 215
Decision Date: 3 May 2024

CaseChat Overview and Summary

Re Nazari involved an application for modification of a restrictive covenant on a property in Victoria. The applicant sought to modify a covenant that restricted the use of the property to residential purposes only. The dispute arose when the applicant proposed to use the property for commercial purposes, leading to a challenge from the covenant beneficiary. The case was heard in the Supreme Court of Victoria.

The central legal issue before the court was whether the modification of the restrictive covenant would likely result in substantial injury to the covenant beneficiary, as required by section 84(1)(c) of the Property Law Act 1958 (Vic). The court had to determine the principles governing the assessment of substantial injury and apply them to the specific circumstances of the case. It was necessary to consider whether the proposed use of the property would significantly affect the value or enjoyment of the covenant beneficiary's land.

The court examined the principles for assessing substantial injury, including the extent to which the modification would alter the character of the area, affect the amenity of the covenant beneficiary's property, and impact the covenant beneficiary's reasonable expectations. After reviewing the evidence and arguments presented by both parties, the court concluded that the modification of the restrictive covenant would not likely result in substantial injury to the covenant beneficiary. The proposed commercial use was deemed compatible with the surrounding area and would not significantly impair the covenant beneficiary's property. The application for modification was therefore granted.

The court ordered that the restrictive covenant be modified to permit the use of the property for commercial purposes, subject to any conditions imposed by the covenant beneficiary. The decision provided clarity on the application of section 84(1)(c) of the Property Law Act 1958 (Vic) and reinforced the principles for assessing substantial injury in restrictive covenant modification cases.

Orders