Burns v Araghi [2006] NSWSC 687

Burns v Araghi [2006] NSWSC 687

The defendant's structures exceeded the maximum height permitted under the restrictive covenant, and the facts did not justify modifying the covenant (except for the pathway rail), because the breach of the covenant caused an injury to the beneficiaries by enabling uses impacting amenity and enjoyment, even if clear water views were not obstructed. Plaintiffs did not acquiesce in the breaches, and thus a mandatory order for removal was appropriate.

Jurisdiction
Australia
Judgment Date
28 June 2006
Procedural Posture
Equity Application (mandatory Order, Cross Claim for Modification) / Judgment After Hearing
Outcome
Mandatory order for removal of structures in breach of restrictive covenant (except for pathway rail); cross-claim for further modification dismissed.
Legal Topics
['restrictive Covenants' 'height Restriction' 'modification of Covenants' 'injunction' 'breach of Covenant']
['real Property' 'equity'] ['restrictive Covenants' 'height Restriction' 'modification of Covenants' 'injunction' 'breach of Covenant']

Case Brief

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Procedural Posture

Equity Application (mandatory Order, Cross Claim for Modification) / Judgment After Hearing

Legal Issues

  1. 1 ['Whether structures (privacy screen and hand rail) erected by defendant breach restrictive covenant' 'Whether restrictive covenant should be modified to allow contravening structures to remain' 'Whether a mandatory order for removal of the structures should be granted']

Ratio Decidendi

The defendant's structures exceeded the maximum height permitted under the restrictive covenant, and the facts did not justify modifying the covenant (except for the pathway rail), because the breach of the covenant caused an injury to the beneficiaries by enabling uses impacting amenity and enjoyment, even if clear water views were not obstructed. Plaintiffs did not acquiesce in the breaches, and thus a mandatory order for removal was appropriate.

Court Disposition

Mandatory order for removal of structures in breach of restrictive covenant (except for pathway rail); cross-claim for further modification dismissed.

Orders

  • ['Mandatory order for removal of all contravening structures except pathway rail.' "Defendant/cross-claimant to pay plaintiffs' costs including cross-claim and any reserved costs." 'Cross-claim otherwise dismissed.' 'No order as to costs for the 4th, 5th and 6th cross-defendants.' 'Exhibits may be returned.']