Re Tang - [2019] VSC 467

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
PROPERTY LIST

S ECI 2019 00343

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

- and -

IN THE MATTER of an application for the modification of the restriction arising under a covenant in a transfer of land registered no. 2061902 dated 27 February 1947 affecting the land at 41-43 Montana Parade, Croydon being lot 3 on plan of subdivision no. LP 16996 and being the land in folio of the Register volume 7210 folio 948 by:

JIQIANG TANG

Plaintiff

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JUDGE:	Ierodiaconou AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	5 June 2019
DATE OF JUDGMENT:	16 July 2019
CASE MAY BE CITED AS:	Re Tang
MEDIUM NEUTRAL CITATION:	[2019] VSC 467

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PROPERTY — Restrictive covenant — Covenant restricting, among other things, the erection of more than one building per acre on the land — Application to modify restrictions in covenant pursuant to the Property Law Act 1958 s 84 — Proposed subdivision into two lots and construction of one dwelling on the new lot — Whether precedent already set by previous developments — Whether modification will not substantially injure the persons entitled to the benefit.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D P Lloyd	Aughtersons Solicitors

HER HONOUR:

The plaintiff, Jiqiang Tang, seeks modification of a restrictive covenant over land situated at 41-43 Montana Parade in Croydon, Victoria (‘the subject land’). The covenant restricts building density to one building per acre. This effectively restricts the subject land to one dwelling, given it is just over one acre. There is currently a single storey dwelling on the subject land.

The plaintiff plans to subdivide the subject land into two separate lots and modify the covenant to allow one dwelling on each. The plaintiff seeks to remove the restrictions on the construction of any building at a cost of less than 1,200 pounds and the requirement that construction be supervised by a registered architect with plans submitted to the original transferor or her architect.

The issues for determination are whether the covenant should be modified to:

(a) permit a second dwelling be erected on the subject land;

(b) remove the cost restriction; and

(c) remove the supervisory restriction related to the original transferor.

These issues are to be determined pursuant to s 84(1)(c) of the Property Law Act 1958 (‘PLA’). The test is whether the Court is satisfied that the proposed modifications ‘will not substantially injure the persons entitled to the benefit of the restrictions’.

Summary of decision

The plaintiff’s application to modify the covenant to enable a second dwelling house is disallowed. The plaintiff has not established that the modification will not substantially injure the beneficiaries of the covenant. The plaintiff’s application to modify the covenant to remove two other restrictions, namely a costs limit on the value of the house and the supervisory restriction related…

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 Tang

Details

AGLC: Re Tang [2019] VSC 467
Case: [2019] VSC 467
Decision Date: 16 July 2019

CaseChat Overview and Summary

The case of Re Tang was heard in the Supreme Court of Victoria, where the applicant sought to modify a restrictive covenant affecting a parcel of land. The restrictive covenant in question was part of a broader agreement that limited, among other things, the number of buildings that could be erected on each acre of the land to one. The applicant wished to subdivide the land into two lots and construct a single dwelling on one of the lots, a proposal that was opposed by other lot owners who argued that it would breach the covenant. The applicant applied for a modification of the covenant under section 84 of the Property Law Act 1958.

The central legal issues that the court had to address were whether the precedent had already been set by previous developments, which would potentially render the modification unnecessary, and whether the modification would not substantially injure the persons entitled to the benefit of the covenant. The applicant argued that similar modifications had been approved in the past, and that the proposed modification would not cause significant harm to the other lot owners. The opposing lot owners, however, contended that the precedent did not exist and that any modification would indeed substantially injure them.

In delivering the judgment, the court found that while previous modifications had been made, they did not establish a clear precedent for the current proposal. The court was also satisfied that the modification would not substantially injure the persons entitled to the benefit of the covenant, as the overall character of the area would be preserved and the restrictions on building density would remain largely intact. Therefore, the court exercised its discretion under section 84 of the Property Law Act 1958 to modify the covenant to allow the applicant to proceed with the subdivision and construction of one dwelling on the new lot.

The final orders of the court were that the restrictive covenant be modified to permit the applicant to subdivide the land into two lots and to construct one dwelling on the new lot, subject to the conditions and requirements set out in the court's judgment. This decision balanced the rights of the applicant to develop their land with the need to protect the interests of other lot owners who benefit from the covenant.

Orders