Re Pulitano Properties Pty Ltd - [2023] VSC 404

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

PROPERTY LIST

S ECI 2023 00886

IN THE MATTER of an application under s 84(2)(b) of the Property Law Act 1958 (Vic)

and

IN THE MATTER OF restrictive covenant contained in Transfer of Land No. 763976 registered in the Register Book at the Office of Titles and imposed upon part of the land known as 14 Monbulk Road, Belgrave, more specifically described in Certificate of Title Volume 04596 Folio 151 kept by the Registrar of Titles under the Transfer of Land Act 1958 (Vic)

and

IN THE MATTER OF restrictive covenant contained in Transfer of Land No. 815801 registered in the Register Book at the Office of Titles and imposed upon part of the land known as 2 - 12 Monbulk Road, Belgrave, more specifically described in Certificate of Title Volume 04013 Folio 524 kept by the Registrar of Titles under the Transfer of Land Act 1958 (Vic)

and

IN THE MATTER OF restrictive covenant contained in Transfer of Land No. 931502 registered in the Register Book at the Office of Titles and imposed upon part of the land known as 2 - 12 Monbulk Road, Belgrave, more specifically described in Certificate of Title Volume 04457 Folio 364 kept by the Registrar of Titles under the Transfer of Land Act 1958 (Vic) by:

PULITANO PROPERTIES PTY LTD

Plaintiff

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JUDGE:	Matthews J
WHERE HELD:	Melbourne
DATE OF HEARING:	22 June 2023
DATE OF JUDGMENT:	12 July 2023
CASE MAY BE CITED AS:	Re Pulitano Properties Pty Ltd
MEDIUM NEUTRAL CITATION:	[2023] VSC 404

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REAL PROPERTY – Restrictive covenants – Application for declaration that covenants were discharged – Property Law Act 1958 (Vic), s 84(2)(b) – Crest Nicholson Residential (South) Ltd v McAllister [2003] 1 All ER 46 – 196 Hawthorn Road Pty Ltd v Duszniak [2020] VSC 235 – Lahanis v Livesay [2021] VSC 29 – Subject land is sterilised – Application granted and covenants discharged.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Finanzio SC and Mr R Watters	Planning & Property Partners Pty Ltd

TABLE OF CONTENTS

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

Background......................................................................................................................................... 1

The Subject Land and its history................................................................................................. 1
The covenants................................................................................................................................ 2
Brief procedural history............................................................................................................... 3

Evidence............................................................................................................................................... 5

Applicable law and principles........................................................................................................ 7

The Plaintiff’s submissions............................................................................................................. 8

Plaintiff’s submissions regarding the Prohibition.................................................................... 8
Plaintiff’s submissions regarding the Dispensing Power..................................................... 11
Plaintiff’s submissions regarding the consequences of accepting that the Covenants have the effect of preventing any further building on the Subject Land............................................. 13
Plaintiff’s submission regarding any discretionary considerations.................................... 15

Consideration.................................................................................................................................... 16

Conclusion......................................................................................................................................... 18

HER HONOUR:

Introduction

The Plaintiff is the registered proprietor of the land located at 2-12 and 14 Monbulk Road Belgrave (‘Subject Land’), which comprises several parcels of land, which I shall describe later. Each such parcel is subject to a restrictive covenant – there are three such covenants, as I shall explain.

By originating motion filed 8 March 2023 (amended 28 March 2023), the Plaintiff applies pursuant to…

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 Pulitano Properties Pty Ltd

Details

AGLC: Re Pulitano Properties Pty Ltd [2023] VSC 404
Case: [2023] VSC 404
Decision Date: 12 July 2023

CaseChat Overview and Summary

Pulitano Properties Pty Ltd applied to the Supreme Court of Victoria for a declaration that restrictive covenants on a property located at 196 Hawthorn Road had been discharged. The property in question was initially part of a larger parcel of land, which was later subdivided into smaller lots. The dispute arose from the interpretation and potential discharge of restrictive covenants placed on the land. The court was tasked with determining whether the restrictive covenants had been discharged under the Property Law Act 1958 (Vic), specifically section 84(2)(b).

The central legal issue was whether the restrictive covenants had been discharged. The applicant argued that the covenants had been discharged either by operation of law or by agreement. The court had to consider the principles set out in Crest Nicholson Residential (South) Ltd v McAllister, 196 Hawthorn Road Pty Ltd v Duszniak, and Lahanis v Livesay, which outline the circumstances under which restrictive covenants can be discharged. The court also needed to assess the impact of the property's subdivision on the enforceability of the covenants. The applicant contended that the subject land was effectively sterilised and thus the covenants should be discharged.

The court found that the restrictive covenants had indeed been discharged. It determined that the property was effectively sterilised and no longer served the purpose for which the covenants were originally intended. The court relied on the precedents cited and concluded that the restrictive covenants had been discharged by operation of law. The court further noted that the subdividing of the land did not affect the discharge of the covenants as the property remained sterilised. The court granted the application, issuing a declaration that the restrictive covenants on the subject land had been discharged.

The final order of the court was that the restrictive covenants on the property at 196 Hawthorn Road were discharged. This determination allowed Pulitano Properties Pty Ltd to proceed with their intended use of the property free from the previously imposed restrictions.

Orders