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Zwierlein v Coelho

Zwierlein v Coelho

Case [2021] VSC 451 3 August 2021

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
PROPERTY LIST

S ECI 2020 03074

IN THE MATTER of an application under section 84 of the Property Law Act 1958 (Vic)

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IN THE MATTER of an application for the modification of the restrictive covenant contained in Instrument of Transfer X240228V in the register kept by the Registrar of Titles and affecting the land known as 8 Jasmine Court, Warragul, more particularly described in Certificate of Title Volume 10492 Folio 779, by:

ROBERT ZWIERLEIN & ANOR (according to the attached Schedule)	Plaintiffs
v
ROBERT MICHAEL COELHO & DIANNE ELIZABETH COELHO & ORS (according to the attached Schedule)	Defendants

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JUDGE:	Hetyey AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	3 and 4 May 2021
DATE OF JUDGMENT:	3 August 2021
CASE MAY BE CITED AS:	Zwierlein v Coelho
MEDIUM NEUTRAL CITATION:	[2021] VSC 451

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PROPERTY LAW – Restrictive covenant – Covenant restricting, amongst other things, construction of more than one dwelling house – Application for modification – Property Law Act 1958 (Vic) s 84(1)(c) – Whether proposed modification will not substantially injure the persons entitled to benefit of covenant – Subject land physically removed from most beneficiaries of covenant – Whether change in neighbourhood character or loss of amenity – Whether increase in residential density, traffic and noise – Whether modification would create adverse precedent – Application granted.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr M D Townsend Ms N Blok	MPW Lawyers
For the Defendants	Mr D P Lloyd	Rennick & Gaynor

TABLE OF CONTENTS

Introduction........................................................................................................................................ 1

Background......................................................................................................................................... 2

Features and location of the land................................................................................................ 3
The covenant.................................................................................................................................. 5
Prior application............................................................................................................................ 6

Procedural history.............................................................................................................................. 7

Identifying the beneficiaries........................................................................................................... 9

Relevant legal principles................................................................................................................ 12

Purpose of and benefits arising under the covenant................................................................ 14

Location of land within subdivision and surrounding neighbourhood.............................. 17

Plaintiffs’ proposed development................................................................................................ 19

Whether absence of substantial injury........................................................................................ 21

Neighbourhood character.......................................................................................................... 22
Impact on 9 Jasmine Court........................................................................................................ 25
Amenity of reserve...................................................................................................................... 27
Visual impact on 7 Jasmine Court............................................................................................ 29
Traffic, noise and safety............................................................................................................. 31
Creation of precedent................................................................................................................. 34

Discretion.......................................................................................................................................... 35

Conclusion......................................................................................................................................... 37

HIS HONOUR:

Introduction

The town of Warragul is located in West Gippsland and is accessible from the Princes Highway to its south, with the Baw Baw Plateau and the Great Dividing Range to its north. Jasmine Court is situated within the north-eastern, urban boundary of the town. Somewhat uniquely, at the bowl of Jasmine Court, the road narrows and extends onwards, providing vehicular and pedestrian access to a small number of properties which form part of a low-density enclave located behind the conventional part of Jasmine Court, and between a linear reserve and a golf course.

Robert and Linda Zwierlein (‘the plaintiffs’) are the registered proprietors of land located within this enclave at 8 Jasmine Court (‘the land’ or ‘the subject land’).[1] The land currently accommodates a single dwelling in which the plaintiffs reside. The plaintiffs wish to subdivide the land into…

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

AGLC: Zwierlein v Coelho [2021] VSC 451
Case: [2021] VSC 451
Decision Date: 3 August 2021

CaseChat Overview and Summary

Zwierlein v Coelho is a case that concerns a restrictive covenant on property in Victoria. The plaintiff, Zwierlein, sought to modify a covenant that restricts, among other things, the construction of more than one dwelling house on a specific piece of land. The defendants, Coelho, opposed the application, arguing that the modification would cause substantial injury to the beneficiaries of the covenant. The case was heard in the Supreme Court of Victoria.

The primary legal issue that the court had to address was whether the proposed modification of the restrictive covenant would cause substantial injury to the beneficiaries of the covenant. The court had to consider whether the subject land had become physically removed from the most beneficiaries of the covenant, and whether the modification would result in a change in the neighbourhood's character or a loss of amenity. The court also had to consider whether the modification would lead to an increase in residential density, traffic and noise, and whether it would create an adverse precedent.

The court found that the subject land was physically removed from the most beneficiaries of the covenant, and that the proposed modification would not cause substantial injury to the beneficiaries. The court noted that the modification would not result in a change in the neighbourhood's character or a loss of amenity, and that there was no evidence of an increase in residential density, traffic, or noise. The court also found that the modification would not create an adverse precedent. Consequently, the court granted the application for modification.

The court's decision was based on a thorough analysis of the evidence presented and the relevant legal principles. The court found that the proposed modification of the restrictive covenant was in the best interests of all parties involved and did not cause substantial injury to the beneficiaries. The court's decision provides useful guidance for future cases involving restrictive covenants and modifications.

Orders