Ferella & Anor v Otvosi & Anor [2004] NSWSC 230

Ferella & Anor v Otvosi & Anor [2004] NSWSC 230

The Master was correct in concluding a common building scheme existed for the subdivision, and the restrictive covenant remained enforceable, even with variations in the mutuality of benefit and burden among lots. The appellants failed to establish the non-existence of the scheme; appeal dismissed.

Parties
First Plaintiff/appellant: Angelo Ferella; Second Plaintiff/appellant: Gustavo Ferella; First Defendant/respondent: Ervin Lloyd Otvosi; Second Defendant/respondent: Keiko Otvosi
Jurisdiction
Australia
Judgment Date
31 March 2004
Procedural Posture
Appeal / Judgment
Outcome
Appeal dismissed.
Legal Topics
Restrictive Covenants, Common Building Scheme, Mutuality of Burden and Benefit, Onus of Proof
Conveyancing Equity Restrictive Covenants Common Building Scheme Mutuality of Burden and Benefit Onus of Proof

Case Brief

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Parties

Angelo Ferella

First Plaintiff/appellant

Gustavo Ferella

Second Plaintiff/appellant

Ervin Lloyd Otvosi

First Defendant/respondent

Keiko Otvosi

Second Defendant/respondent

Procedural Posture

Appeal / Judgment

Legal Issues

  1. 1 Whether a common building scheme existed in the subdivision
  2. 2 Whether reduction in mutuality of burden and benefit ended the scheme
  3. 3 Whether the onus of proof lies on the party asserting non-enforceability of the restrictive covenant

Ratio Decidendi

The Master was correct in concluding a common building scheme existed for the subdivision, and the restrictive covenant remained enforceable, even with variations in the mutuality of benefit and burden among lots. The appellants failed to establish the non-existence of the scheme; appeal dismissed.

Court Disposition

Appeal dismissed.

Orders

  • Appeal dismissed; parties to bring in short minutes of orders reflecting these reasons.
  • Court will hear the parties on costs.