Ferella v Otvosi [2005] NSWSC 962

Ferella v Otvosi [2005] NSWSC 962

The covenant was not void for uncertainty. Properly construed, the restriction that a building not be more than two storeys in height meant that no part of the building should rise from the ground at that point in the vertical plane for more than two storeys. The proposed development contained four superimposed storeys and rose from the ground for more than two storeys, so it would breach the covenant. The covenant was not obsolete because it still secured a practical benefit to the Otvosis by protecting significant harbour views, and the Ferellas did not establish that the proposed modification would avoid substantial injury or that an equivalent permissible development could be approved...

Jurisdiction
Australia
Judgment Date
23 September 2005
Procedural Posture
Equity Proceedings by Cross Claim for Enforcement of a Restrictive Covenant and Defence Claim for Extinguishment or Modification Under S 89 of the Conveyancing Act 1919 / Final Judgment After Hearing of the Cross Claim and Modification Defence
Outcome
Modification of the restrictive covenant refused; injunction restraining construction of the development granted.
Legal Topics
['restrictive Covenants' 'interpretation of Restrictive Covenants' 'modification or Extinguishment of Restrictive Covenants' 'injunctive Relief' 'common Building Scheme' 'views and Building Height Restrictions']
['real Property' 'equity'] ['restrictive Covenants' 'interpretation of Restrictive Covenants' 'modification or Extinguishment of Restrictive Covenants' 'injunctive Relief' 'common Building Scheme' 'views and Building Height Restrictions']

Case Brief

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Procedural Posture

Equity Proceedings by Cross Claim for Enforcement of a Restrictive Covenant and Defence Claim for Extinguishment or Modification Under S 89 of the Conveyancing Act 1919 / Final Judgment After Hearing of the Cross Claim and Modification Defence

Legal Issues

  1. 1 ['Whether the restriction contained in the covenant is ambiguous and therefore unenforceable.' 'Whether the restriction that the building shall not be more than two storeys in height means that the building shall not be more than two storeys in height above natural ground level.' 'Whether the development is in breach of the covenant as construed.' 'Whether the covenant ought be modified pursuant to s 89(1) of the Conveyancing Act 1919.' 'Whether discretionary considerations should preclude the granting of injunctive relief if the defendants are otherwise entitled to it.']

Ratio Decidendi

The covenant was not void for uncertainty. Properly construed, the restriction that a building not be more than two storeys in height meant that no part of the building should rise from the ground at that point in the vertical plane for more than two storeys. The proposed development contained four superimposed storeys and rose from the ground for more than two storeys, so it would breach the covenant. The covenant was not obsolete because it still secured a practical benefit to the Otvosis by protecting significant harbour views, and the Ferellas did not establish that the proposed modification would avoid substantial injury or that an equivalent permissible development could be approved...

Court Disposition

Modification of the restrictive covenant refused; injunction restraining construction of the development granted.

Orders

  • ['The covenant will not be modified by the Court.' 'The Otvosis are entitled to an injunction restraining the construction of the development.' 'A time will be appointed for short minutes to be brought in to give effect to the decision.' 'Any question as to costs may be raised at that time.']