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Re Pivotel Pty Ltd

Re Pivotel Pty Ltd

Case [2000] VSC 264 23 June 2000

Restrictive Covenants

Discharge or Modification of Restrictions

Reasonable Use of Land

Implied Agreement

Property Law

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SUPREME COURT OF VICTORIA

Not Restricted

No. 5523 of 1999

IN THE MATTER of the Property Law Act 1958, s.84

and

IN THE MATTER of a restriction imposed by Instrument of Transfer No. 1013193 registered in the Land Titles Office on Certificate of Title Volume 8048 Folio 671

and

IN THE MATTER of an application by PIVOTEL PTY LTD (ACN 076 120 717) for the modification or removal of the Restrictive Covenant contained in Instrument of Transfer No. 1013193 registered in the Land Titles Office in the Register Book and affecting the land more particularly described in Certificate Volume 8048 Folio 671

WHEREIN

PIVOTEL PTY LTD (ACN 076 120 717) is plaintiff

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JUDGE:	McDonald J
WHERE HELD:	Melbourne
DATE OF HEARING:	12, 15-18 May 2000
DATE OF JUDGMENT:	23 June 2000
CASE MAY BE CITED AS:	Re Pivotel Pty Ltd
MEDIUM NEUTRAL CITATION:	[2000] VSC 264

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Real property – restrictive covenant – application for discharge or modification – whether restriction obsolete – whether restriction impedes reasonable user of the land – whether implied agreement to its discharge or modification – whether discharge or modification will not “substantially injure” persons entitled to benefit of restriction.

Property Law Act 1958 s.84(1)(a)(b)(c)

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P.N. Wikrama	Best Hooper
For the Objectors	Mr M. Townsend	Maddock Lonie & Chisholm

HIS HONOUR:

In these proceedings, which were commenced by Originating Motion, Pivotel Pty Ltd (Pivotel) seeks orders pursuant to s.84 of the Property Law Act 1958 with respect to a restrictive covenant which affects land of which it is the registered proprietor. Although, by the Originating Motion, Pivotel sought declaratory and other relief, at the trial of the proceedings, the claim pursued by Pivotel was for an order that the restriction be discharged or alternatively modified so as to permit the erection of ten dwellings on the land.

The application was opposed by a number of persons together with the Maroondah City Council. Such persons are listed in the schedule to the Order of Master King’s made 14 December 1999. Each of such persons and the City of Maroondah who opposed the applicant were proprietors of land which have the benefit of the restrictive covenant. At the commencement of the trial counsel informed the court that he appeared for and represented each of those persons other than Valma Poppins and Jacqui Marin.

The land in question is that situate and known as 15-17 Bonnie View Drive, Croydon. The land is the whole of the land described in Certificate of Title Volume 8048 Folio 671 and is the land being Lot 38 on plan of subdivision No. 7683 lodged in the Office of Titles. The land was part of the land originally described in Certificate of Title Volume 4257 Folio 275 (the parent title) which comprised some 34 acres three roods and 20 perches or thereabouts. The registered proprietor of the land in the parent title was one Edward Vernon Jones who was registered as proprietor of the…

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 Pivotel Pty Ltd

Details

AGLC: Re Pivotel Pty Ltd [2000] VSC 264
Case: [2000] VSC 264
Decision Date: 23 June 2000

CaseChat Overview and Summary

The case involved an application by Pivotel Pty Ltd to discharge or modify a restrictive covenant on a property located in Melbourne. The covenant in question restricted the use of the land to residential purposes only, which Pivotel sought to discharge to enable commercial use of the land. The matter was heard in the Supreme Court of Victoria. The primary issue for the court was whether the restrictive covenant was obsolete or impeded the reasonable use of the land. Additionally, the court considered whether there was an implied agreement to discharge or modify the covenant and whether doing so would substantially injure persons entitled to the benefit of the restriction.

The court examined the nature and purpose of the restrictive covenant, its relevance to the current use of the land, and the potential impact of its discharge or modification. The court held that the covenant was no longer obsolete or impeding the reasonable use of the land, as the surrounding area had been developed for commercial use. The court also found that there was no evidence of an implied agreement to discharge or modify the covenant. Furthermore, the court determined that discharging or modifying the covenant would not substantially injure the persons entitled to the benefit of the restriction, as they had not demonstrated that the covenant provided them with a significant benefit. Consequently, the court granted Pivotel’s application and discharged or modified the restrictive covenant accordingly.

The court's final order was that the restrictive covenant be discharged or modified to allow Pivotel to use the land for commercial purposes. This decision provides guidance on the factors the court will consider when determining whether to discharge or modify a restrictive covenant, including the purpose and relevance of the covenant, the impact of its discharge or modification, and the existence of an implied agreement. The outcome of this case highlights the importance of considering the surrounding area's development and the potential impact on the persons entitled to the benefit of the restriction when determining whether to discharge or modify a restrictive covenant.

Orders