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Wong v McConville

Wong v McConville

Case [2014] VSC 148 7 April 2014

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

S CI 2013 02552

IN THE MATTER of the Property Law Act 1958, Section 84

and

IN THE MATTER of an application by Rebecca Yokehoong Wong for the modification of the restrictive covenant contained in Instrument of Transfer No. 2389018 registered in the Land Titles Office in the Register Book and imposed upon the land more particularly described as Lot 493 on Plan of Subdivision 9986 Certificate of Title Volume 08024 Folio 024

REBECCA YOKEHOONG WONG	Plaintiff
and
DANIEL McCONVILLE & ORS (and others according to the attached schedule)	Defendants

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JUDGE:	DERHAM AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	21 and 22 October 2013
DATE OF JUDGMENT:	7 April 2014
CASE MAY BE CITED AS:	Wong v McConville & Ors
MEDIUM NEUTRAL CITATION:	[2014] VSC 148

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REAL PROPERTY — Restrictive covenant — Application for modification — Applicable legal principles — Covenant restricting, amongst other things, the erection of more than one dwelling on the land — Whether modification will not substantially injure the persons entitled to the benefit — Application granted — Property Law Act1958, s 84(1)(c).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M Townsend	Michael Flemming & Associates
For the Defendant	Mr R Miller	Best Hooper

HIS HONOUR:

Introduction and Summary of Conclusions

The plaintiff owns the land at 453 Pascoe Vale Road, Strathmore (the Land).[1] It is on the west side of that road. Pascoe Vale Road, as is well known, is a substantial arterial road carrying a considerable volume of traffic.
[1]The land more particularly described in Certificate of Title Volume 08024 Folio 024, and being Lot 493 on Plan of Subdivision 9986.

Immediately to the north of the land is a parcel of vacant land owned by the Roads Corporation,[2] which is best described as a buffer, because immediately to its north is the Tullamarine Freeway where it overpasses Pascoe Vale Road. That freeway looms over the Land in an imposing way.
[2]Lot 454 on LP 9986, now forming part of the buffer to the Tullamarine Freeway, or City Link Project.

Immediately to the south of the Land, at 451 Pascoe Vale Road, is a house and land owned by the third defendant, Mr Zhang, and his wife. It is occupied by Mr and Mrs Zhang and their family.

The Land has an area of approximately 570 square metres. It is presently developed with a single storey rendered brick veneer dwelling located towards the front of the Land (although set back some 30 feet or nine metres). It has a driveway located on the north side providing access to a garage at the rear of the Land.

The plaintiff proposes to subdivide the Land into two lots, and, to construct another dwelling on the subdivided land.[3] The proposed new dwelling is a two storey residence at the rear of the existing house. Concept plans for this proposed subdivision and residence were in evidence.[4]
[3]Exhibit…

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 Wong v McConville

Details

AGLC: Wong v McConville [2014] VSC 148
Case: [2014] VSC 148
Decision Date: 7 April 2014

CaseChat Overview and Summary

The matter before the court involved Wong, the applicant, and McConville, the respondent, in a dispute concerning a restrictive covenant on a piece of real property. The applicant sought to modify the restrictive covenant, which originally restricted, among other things, the number of dwellings that could be erected on the land. The case was heard in the Supreme Court of Victoria.

The primary legal issue before the court was whether modifying the restrictive covenant would substantially injure the persons entitled to its benefit. The court was required to consider the intent of the parties when the covenant was created, the current circumstances of the parties, and the extent to which the modification would affect the original purpose of the covenant. The court also needed to determine if the modification would be in the best interests of all parties involved and whether it would cause undue hardship to the applicant.

The court found that the modification of the restrictive covenant would not substantially injure the persons entitled to the benefit. The court determined that the original intent of the covenant was to maintain a specific character and density of the land, which had not been significantly impacted by the proposed changes. Furthermore, the modification would not cause undue hardship to the applicant, and it would be in the best interests of all parties involved. Therefore, the court granted the application to modify the restrictive covenant in accordance with the provisions of the Property Law Act 1958, section 84(1)(c).

The court ordered that the restrictive covenant be modified to allow for the erection of more than one dwelling on the land, subject to certain conditions and restrictions as outlined in the judgment. The court emphasised the importance of balancing the rights of the parties and ensuring that the modification did not substantially injure the persons entitled to the benefit of the covenant.

Orders