Re Sanders - [2019] VSC 217

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PROPERTY LIST

S ECI 2018 01453

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

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IN THE MATTER of an application for the modification of the restriction arising under the covenant in transfer of land registered no. 2452878 dated 28 September 1951 affecting the land at 60 Boronia Road, Boronia, being lot 20 on Plan of Subdivision no. 26826 and being the land in Certificate of Title Volume 8200 Folio 334

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IN THE MATTER of an application for the modification of the restriction arising under the covenant in transfer of land registered no. 2260305 dated 4 October 1949 affecting the land at 62 Boronia Road, Boronia, being lot 19 on Plan of Subdivision no. 26826 and being the land in Certificate of Title Volume 8043 Folio 931 by:

NEVILLE ARTHUR SANDERS	First Plaintiff
ARENA EQUITY PTY LTD (ACN 167 111 168)	Second Plaintiff

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JUDGE:	Lansdowne AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	27 March 2019
DATE OF JUDGMENT:	27 March 2019
DATE OF WRITTEN REASONS:	3 April 2019
CASE MAY BE CITED AS:	Re Sanders & anor
MEDIUM NEUTRAL CITATION:	[2019] VSC 217

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REAL PROPERTY – Restrictive covenant – Application to modify single dwelling restriction to allow four dwellings and remove material restriction – Necessity for earlier applications to be disclosed – Whether the modification will not substantially injure the beneficiaries of the restrictions – Whether establishes a precedent for areas in the interior of the subdivision – MacLurkin v Searle [2015] VSC 750 discussed – Application granted – s 84(1)(c) Property Law Act 1958 (Vic)

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr W Rimmer	Aughtersons

TABLE OF CONTENTS

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

Background......................................................................................................................................... 4

Benefited land................................................................................................................................ 4
Extent of covenants....................................................................................................................... 6
Procedural history........................................................................................................................ 8

Legal principles.................................................................................................................................. 9

The objections................................................................................................................................... 14

Discussion.......................................................................................................................................... 15

Conclusion and orders.................................................................................................................... 19

HER HONOUR:

Introduction

This is an application for modification of restrictive covenants burdening each of two adjacent lots fronting onto Boronia Road, Boronia, being the land known as 60 and 62 Boronia Road. The covenants limit the number of permitted dwellings on each lot to one, and contain a requirement that the dwelling be constructed of brick or brick veneer with a tiled roof. The plaintiffs seek that the number of permitted dwellings be increased to four on each lot, and that the materials restriction be removed.

The application is not formally opposed by an objector joined as a defendant. It has, however, met with strong objection from two benefited landowners who live in Marie Street, Boronia which meets Boronia Road to the west of the subject lots, between 66 and 68 Boronia Road. Those objectors are Mr Anthony Searle of 16 Marie Street, Boronia, and Mrs Shirley Gibbon of 22 Marie Street, Boronia. They appeared at the Court hearing on 7 February 2019, at which I permitted them…

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 Sanders

Details

AGLC: Re Sanders [2019] VSC 217
Case: [2019] VSC 217
Decision Date: 27 March 2019

CaseChat Overview and Summary

The case of Re Sanders involved an application to modify a restrictive covenant in a subdivision, seeking permission to construct four dwellings instead of one and to remove a material restriction. The application was brought before the Supreme Court of Victoria. The central dispute was whether the proposed modifications would not substantially injure the beneficiaries of the original restrictive covenants and whether the modifications would set a precedent for the interior areas of the subdivision.

The legal issues before the court included whether the applicant was required to disclose earlier applications related to the same property and whether the proposed modifications would substantially injure the beneficiaries of the original restrictive covenants. The court examined whether the modifications would establish a precedent for areas within the interior of the subdivision and considered the applicability of the decision in MacLurkin v Searle [2015] VSC 750. The court had to balance the interests of the applicant against the interests of the beneficiaries of the restrictive covenants.

The court found that the applicant had not been required to disclose earlier applications and that the proposed modifications would not substantially injure the beneficiaries of the restrictive covenants. The court held that the modifications would not establish a precedent for the interior areas of the subdivision and that the interests of the beneficiaries were not adversely affected. The court granted the application under section 84(1)(c) of the Property Law Act 1958 (Vic), allowing the modifications to proceed.

The final orders included the modification of the restrictive covenant to permit the construction of four dwellings and the removal of the material restriction, as sought by the applicant. The court's decision provided clarity on the disclosure requirements for earlier applications and the criteria for modifying restrictive covenants in similar circumstances.

Orders