| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PROPERTY LIST
S ECI 2020 01583
| SIMON ROBERT DAVID STOCKFELD & ANOR (according to the attached Schedule) | Plaintiffs |
| v | |
| SHARON JOY HENDON & ORS (according to the attached Schedule) | Defendants |
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JUDGE: | Hetyey AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 17 November 2020 |
DATE OF JUDGMENT: | 26 March 2021 |
CASE MAY BE CITED AS: | Stockfeld & Anor v Hendon & Ors |
MEDIUM NEUTRAL CITATION: | [2021] VSC 133 |
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PROPERTY LAW – Restrictive covenant – Property Law Act 1958 (Vic) s 84(2) – Proper construction of covenant – Development on property limited to ‘a good and substantial double fronted dwelling house with necessary outbuildings’ – Minimum cost requirement – Requirement for plans to be approved by an agent nominated by vendor – Restriction on construction of more than one such building – Effect of death of agent on restrictions contained within covenant – Whether relevant restrictions became absolute or spent on death of agent – Whether only approval requirement spent on death of agent – Severance – Whether approval requirement can be severed from remainder of covenant – Whether covenant prevents development of more than one dwelling house on the property.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Townsend and Mr C Tran | MPW Lawyers |
| For the Defendant | Mr S Horgan QC and Mr W Rimmer | Rogers & Gaylard Lawyers |
TABLE OF CONTENTS
Introduction........................................................................................................................................ 1
Background......................................................................................................................................... 1
Procedural history.............................................................................................................................. 5
Applicable Law................................................................................................................................... 6
Principles of construction................................................................................................... 7
Review of authorities on consent requirements in covenants...................................... 9
Nature of approval requirement................................................................................................... 15
Construction of covenant as a whole........................................................................................... 17
Textual analysis.................................................................................................................. 19
Other context...................................................................................................................... 20
Effect of death of Elliott Cairnes on operation of the covenant............................................. 21
Can the approval requirement be severed?................................................................................ 28
Availability of severance.................................................................................................. 28
Application of severance.................................................................................................. 31
Status of cost requirement.............................................................................................................. 34
Alternative contentions regarding the single building restriction........................................ 35
No restriction on number of dwellings?........................................................................ 35
No restriction on number of buildings?......................................................................... 38
Conclusion......................................................................................................................................... 39
HIS HONOUR:
Introduction
In this proceeding, Simon and Rachel Stockfeld (‘the plaintiffs’) seek declarations about a restrictive covenant that limits the development and use of their property located at 357-359 Wattletree Road, Malvern East (‘the property’).[1] The covenant was created more than a hundred years ago. It provides, amongst other things, that construction on the property is limited to ‘a good and substantial double fronted dwelling house with necessary outbuildings’, that plans be approved by an agent by the name of Mr Elliott Cairnes, and that there only be one such building on the property (‘the covenant’). However, Mr Cairnes is now deceased. The principal question before the Court is: what is the effect of the death of Mr Cairnes on the operation of the covenant? Does it mean the relevant development restrictions contained in the covenant have become absolute? Alternatively, are the restrictions now discharged and no longer in force? Or, is it only the requirement for approval by…
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- AGLC
- Stockfeld v Hendon [2021] VSC 133
- Case
- [2021] VSC 133
- Decision Date
CaseChat Overview and Summary
The primary legal issues the court needed to address were the effect of the agent’s death on the restrictive covenants, whether the restrictions became absolute or lapsed, and if only the approval requirement lapsed, leaving the other restrictions intact. Additionally, the court had to determine whether the approval requirement could be severed from the rest of the covenant and if the covenant effectively prevented the development of more than one dwelling house on the property. These issues were crucial in assessing the enforceability of the covenants and the extent to which they could be modified or removed.
The court concluded that upon the death of the agent, the approval requirement of the covenant lapsed, but the other restrictions remained enforceable. The court held that the approval requirement was severable from the other restrictive covenants, meaning that the remaining restrictions continued to apply. The court found that the covenant did indeed prevent the development of more than one dwelling house on the property. Consequently, the court upheld the enforceability of the remaining covenants, thereby restricting the defendant from constructing additional buildings on the property.
The final orders of the court were that the restrictive covenants, excluding the lapsed approval requirement, remained in effect and enforceable against the defendant. The court declared that the defendant could not construct more than one dwelling house on the property and that any plans for development must comply with the remaining restrictions. The court’s decision provided clarity on the enforceability of restrictive covenants and the impact of the death of an appointed agent on such covenants.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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