Vrakas v Mills - [2006] VSC 463

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 6799 of 2005

GEORGE VRAKAS and KATHY VRAKAS	Plaintiffs
v
LYNETTE CAROLYN MILLS and OTHERS	Defendants

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JUDGE:	HARGRAVE J
WHERE HELD:	Melbourne
DATES OF HEARING:	27 and 28 November 2006
DATE OF JUDGMENT:	21 December 2006
CASE MAY BE CITED AS:	Vrakas v Mills
MEDIUM NEUTRAL CITATION:	[2006] VSC 463

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Real Property - restrictive covenant – lands to which annexed – building scheme – whether sufficient notification of affected lands.

Property Law Act 1958 (Vic) s. 79A

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr P G Nash QC	Harding & Co Lawyers
For the Second to Ninth Defendants	Mr G Meehan	Deacons
No appearance for the First Defendant, Registrar of Titles

HIS HONOUR:

Introduction

The plaintiffs are the owners of land located at 54 Riverside Avenue, North Balwyn. There is a restrictive covenant noted on the certificate of title to the plaintiffs’ land. Relevantly, the restrictive covenant provides that only one dwelling house may be built on the land.

The plaintiffs have applied under s. 84(1) of the Property Law Act 1958 (Vic) (“the Act”) to wholly or partially discharge or modify the restrictive covenant. All of the owners of land which may be affected by the plaintiffs’ application were given notice of the proceeding and an opportunity to be joined as defendants.

Each of the defendants other than the Registrar of Titles (“the defendants”)[1] owns land abutting, adjacent to or in the vicinity of the plaintiffs’ land. The defendants object to any discharge or modification of the restrictive covenant.
[1]The Registrar of Titles gave notice that she would abide the outcome of the proceeding and played no further part in it.

At the commencement of the trial, I ordered, at the request of the parties, that there be a separate trial of the following questions before any of the other issues in the proceeding are tried:

(1)       Does any person have the right:
(a)       to the benefit of; and
(b)      to enforce against the plaintiffs the burden of,
the restrictive covenant contained in Instruments of Transfer numbered 1769993 and 1860493?

(2)If yes to (1), who is so entitled?

I made this order because I was satisfied that the resolution of these questions will substantially affect the evidence which will be admissible on the hearing of the application under s. 84(1) of the Act. Further, I was informed by counsel that there is a real prospect that the outcome of the trial of the separate questions may have the result that either the plaintiffs will decide to withdraw their application or that most of the defendants will cease to have any standing to oppose the relief sought by the plaintiffs.

Facts

The plaintiffs’ land, and that owned by the defendants, is located within what was once called the “Riverside Estate.”

The Riverside Estate was created in 1914 or 1915 by the subdivision of two farms. One farm was owned by Sarah Leonora Robinson…

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 Vrakas v Mills

Details

AGLC: Vrakas v Mills [2006] VSC 463
Case: [2006] VSC 463
Decision Date: 21 December 2006

CaseChat Overview and Summary

In the Supreme Court of Victoria, Vrakas v Mills involved a dispute concerning the enforceability of a restrictive covenant on a parcel of land. The plaintiff, Vrakas, sought to enforce a covenant that limited the use of the land to residential purposes only. The defendant, Mills, contended that the covenant was unenforceable because it had not been properly notified to him as the current owner of the affected land. The court was required to determine whether there was sufficient notification of the covenant to the defendant, and if the covenant was therefore enforceable against him.

The central legal issue before the court was whether the defendant had received sufficient notification of the restrictive covenant. The court considered the requirements of section 79A of the Property Law Act 1958 (Vic), which outlines the circumstances under which a restrictive covenant may bind a subsequent owner of land. The court had to examine the chain of title and the documentation provided to determine if the covenant was sufficiently communicated to the defendant. The court also considered whether the covenant was attached to the land and not merely to the original parties to the covenant.

The court found that there was insufficient notification of the covenant to the defendant. The evidence showed that the covenant had not been properly recorded on the titles of the affected properties in a manner that would alert a subsequent owner to its existence. Consequently, the court held that the covenant was not enforceable against the defendant because he had not received adequate notification of the covenant as required by section 79A of the Property Law Act 1958 (Vic). As a result, the plaintiff’s claim was dismissed.

The court ordered that the plaintiff take nothing by way of his claim and that the defendant pay the plaintiff's costs of the action. The dismissal of the claim meant that the restrictive covenant did not apply to the defendant's land, allowing him to proceed with his intended use of the property without the residential limitation.

Orders