Rosenwald v Hogg [2015] VSC 199 - [2015] VSC 199

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT

S CI 2014 01142

ROSENWALD	Plaintiff
v
HOGG	Defendant

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JUDGE:	MACAULAY J
WHERE HELD:	Melbourne
DATES OF HEARING:	21 - 23 April 2015
DATE OF JUDGMENT:	13 May 2015
CASE MAY BE CITED AS:	Rosenwald v Hogg [2015] VSC 199
MEDIUM NEUTRAL CITATION:	[2015] VSC 199

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REAL PROPERTY – Restrictive Covenant – Construction – Whether covenant should be discharged – Whether covenant should be modified - Proceeding dismissed – Property Law Act 1958 (Vic) s 84(1).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr N Jones	Subdivision Lawyers
For the Defendant	Mr N Tweedie SC with D Robinson	Rigby Cooke Lawyers

HIS HONOUR:

Introduction

Hila Rosenwald, the plaintiff, wishes to demolish the detached single dwelling on her land at 468 Hawthorn Road, Caulfield South (‘the subject property’) — situated on the corner of Hawthorn Road and Seaview Street — and replace it with a three storey building, with a basement car park, containing up to 13 apartments.

To do so, she requires the discharge or modification of a restrictive covenant imposed on the title unless I determine that, on its proper construction, the covenant does not limit the use of the land to a single dwelling. For reasons I will explain, I consider that the covenant does limit the use of the land to one dwelling. So, the question is whether I am satisfied that it is appropriate to either discharge or modify it to allow for multi-dwelling use. Again, for reasons I will explain, I am not satisfied the covenant should be discharged. It follows that the critical issue is whether it should be modified.

Modification of the covenant is sought either because the restriction on the use of the land for only a single dwelling is obsolete, or because a modification to permit the development that Mrs Rosenwald proposes would not substantially injure those who are entitled to the benefit of the covenant. Proof of either basis would suffice. Each of these bases corresponds to a ground for modification available under s 84(1) of the Property Law Act1958 (Vic) (‘the Act’).

But the real issue is narrower still. The only person with the benefit of the covenant who has objected to Mrs Rosenwald’s application is the defendant, Margaret Hogg.[1] Mrs Hogg owns the land on the corner of Seaview Street and Bracken Street, about 100m to the west of Mrs Rosenwald’s land. Mrs Hogg does not object to the construction of a two storey building with up to 8 apartments, on a building envelope of 50% of the land area and with basement car parking for 8 cars (and subject to a few other parameters I need not mention at present). Mrs Hogg’s position implies that a covenant beneficiary would not suffer substantial injury if a building of that kind was built, but that such beneficiary would suffer substantial injury if a building was erected with one additional storey, with up to 5…

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.

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Details

Case: [2015] VSC 199
Decision Date: 13 May 2015

CaseChat Overview and Summary

In the case of Rosenwald v Hogg, the parties involved were the plaintiff, Rosenwald, and the defendant, Hogg. The dispute centred around a restrictive covenant concerning property located at 80-84 Lonsdale Street, Melbourne. The case was heard in the Supreme Court of Victoria. Rosenwald sought to have the restrictive covenant, which limited the use of the property for the sale of alcohol, modified or discharged. Hogg opposed the application, arguing that the covenant should remain in force.

The court was tasked with determining the interpretation of the restrictive covenant and whether it should be discharged or modified. The key legal issue was whether the covenant should be enforced as written or whether there were circumstances that warranted its modification or discharge. The court also needed to consider the relevant provisions of the Property Law Act 1958 (Vic), particularly section 84(1), which governs the modification or discharge of restrictive covenants.

The court examined the terms of the covenant and the context in which it was created. It found that the covenant was clear and unambiguous and did not contain any terms that would allow for its modification or discharge. The court held that the covenant should be enforced as written, and there were no grounds for modifying or discharging it. Consequently, the court dismissed the proceeding. The court's reasoning was based on the principle that restrictive covenants should be enforced according to their terms unless there are exceptional circumstances that justify modification or discharge.

The court's decision resulted in the dismissal of Rosenwald's proceeding, and the restrictive covenant remained in force. The court found that there were no exceptional circumstances that warranted the modification or discharge of the covenant. No further orders were made by the court beyond dismissing the proceeding.

Orders