IN THE MATTER of an application by Mark William Suhr and Elizabeth Alexandra Suhr for the discharge and or modification of the restrictive covenant contained in Instrument of Transfer No. 1656917 registered in the Land Titles Office in the Register Book and imposed upon the land more particularly described in Certificate of Title Volume 6132 Folio 361

IN THE MATTER of an application by:

MARK WILLIAM SUHR & ORS (according to the schedule attached)	Plaintiffs
v
ANDREW GORDON MICHELMORE & ORS (according to the schedule attached)	Defendants

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JUDGE:	Pagone J
WHERE HELD:	Melbourne
DATE OF HEARING:	5, 6, 7, 8 March 2013
DATE OF JUDGMENT:	31 May 2013
CASE MAY BE CITED AS:	Mark William Suhr & Ors v Andrew Gordon Michelmore & Ors
MEDIUM NEUTRAL CITATION:	[2013] VSC 284

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RESTRICTIVE COVENANT – Height restriction – Application to declare invalid, discharge or modify restrictive covenant - Whether restrictive covenant is void for uncertainty – Indefeasibility of title - Extent to which extrinsic evidence is permissible to give effect to what the Register identifies – Whether the level of the land today is the same as the level of the land in 1937 - Whether restrictive covenant is obsolete – Whether continued existence of the covenant impedes the reasonable user of the land – Whether the continued existence of the covenant secures a practical benefit to other persons – Changes in the character of the land or neighbourhood – Whether modification of the covenant will not substantially injure those entitled to its benefit – Whether the Court should exercise its discretion to deny relief – Whether conduct of plaintiffs should disentitle them to relief - Westfield Management Ltd v Perpetual Trustee Company Ltd (2007) 233 CLR 528 – Bursill Enterprises Pty Ltd v Berger Brothers Trading Co Pty Ltd (1971) 124 CLR 73 - Property Law Act 1958 (Vic) s 84(1).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr S Horgan S.C with Ms L Harrison	Best Hooper
For the First & Second Defendants	Mr J Gobbo QC with Mr M Townsend	JRT Partnership Pty Ltd
For the Third Defendant	Mr J Gobbo QC with Mr M Townsend	Sackville Wilks Pty Ltd

HIS HONOUR:

The plaintiffs own property in Walsh Street South Yarra including that numbered 252 Walsh Street, the rear of which is subject to a restrictive covenant made in 1937 by Sir Edmund Herring and Lady Mary Herring upon its transfer to Robert Outhwaite. The covenant relevantly provides that those burdened by it:

[W]ill not at any time hereafter erect any building of a greater height than twelve feet above the present level of the land hereby transferred and any such [building] shall not be erected within five feet of the southern boundary of the lastmentioned land.

The plaintiffs challenge only the height restriction in the covenant…

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 Suhr v Michelmore

Details

AGLC: Suhr v Michelmore [2013] VSC 284
Case: [2013] VSC 284
Decision Date: 31 May 2013

CaseChat Overview and Summary

The matter before the court involved an application by the plaintiffs, Suhr, to have a restrictive covenant declared invalid, discharged, or modified. The covenant in question was an aspect of the title to a property they owned in Melbourne. The defendant, Michelmore, opposed the application, seeking to uphold the covenant's validity. The court was tasked with determining the enforceability of this height restriction and whether it should be modified or removed.

The central legal issues addressed by the court were whether the restrictive covenant was void for uncertainty, the extent to which extrinsic evidence could be used to clarify the terms of the covenant, and whether the covenant had become obsolete or impeded the reasonable use of the land. Additionally, the court had to consider if the covenant still provided a practical benefit to other landowners and if modifying the covenant would substantially harm those who might benefit from it. The court also needed to assess if the plaintiffs' conduct disentitled them to relief.

The court found that the restrictive covenant was not void for uncertainty, despite the plaintiffs' argument to the contrary. It was determined that the covenant's terms were sufficiently clear, considering the context of the time when it was created. The court held that the covenant's purpose was to prevent the land from being developed to a height that would overlook neighbouring properties, and this purpose was still valid. The plaintiffs' argument that the covenant was obsolete because the land levels had changed since 1937 was rejected. The court held that the current land levels did not significantly differ from those in 1937, and thus, the covenant remained relevant. Furthermore, the court found that the plaintiffs had not demonstrated that the continued existence of the covenant impeded their reasonable use of the land or that it no longer provided a practical benefit to neighbouring properties. Given these findings, the court declined to exercise its discretion to modify or discharge the covenant. Finally, the court considered the plaintiffs' conduct and found no grounds to disentitle them from relief based on their actions.

The court's decision was to dismiss the plaintiffs' application to have the restrictive covenant declared invalid, discharged, or modified. The covenant remained in force, and the plaintiffs were not granted the relief they sought.

Orders