Dandaloo Pty Ltd v Darwich [2006] NSWSC 1305

Dandaloo Pty Ltd v Darwich [2006] NSWSC 1305

Parking of a truck or commercial vehicle with weight greater than 3 tonnes on the defendant's property or nearby breached the terms of the restrictive covenant in clause 13 of the 88B instrument, evidenced by vehicle specifications and photographs. The repeated breaches and residential character of the area warrant the grant of an injunction enforceable until the covenant's expiry.

Parties
Plaintiff: Dandaloo Pty Limited; Defendant: Abdul Razzak Darwich
Jurisdiction
Australia
Judgment Date
28 November 2006
Procedural Posture
Injunction Application / Ex Parte Hearing—judgment
Outcome
Injunction issued; costs ordered against defendant
Legal Topics
Restrictive Covenants, Injunctions, Interpretation of Covenants, Parking of Commercial Vehicles
Real Property Equity Restrictive Covenants Injunctions Interpretation of Covenants Parking of Commercial Vehicles

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Parties

Dandaloo Pty Limited

Plaintiff

Abdul Razzak Darwich

Defendant

Procedural Posture

Injunction Application / Ex Parte Hearing—judgment

Legal Issues

  1. 1 Whether parking a truck of more than 3 tonnes on the property breaches the restrictive covenant
  2. 2 Appropriate circumstances for issue of injunction to enforce restrictive covenants

Ratio Decidendi

Parking of a truck or commercial vehicle with weight greater than 3 tonnes on the defendant's property or nearby breached the terms of the restrictive covenant in clause 13 of the 88B instrument, evidenced by vehicle specifications and photographs. The repeated breaches and residential character of the area warrant the grant of an injunction enforceable until the covenant's expiry.

Court Disposition

Injunction issued; costs ordered against defendant

Orders

  • Defendant is restrained, to and including 25 November 2012, from parking on Lot 2218 in Deposited Plan 1043584, also known as 53 Turbott Avenue, Harrington Park, any truck or commercial vehicle with a weight greater than 3 tonnes.
  • Defendant is restrained, to and including 25 November 2012, from keeping or causing to remain any truck or commercial vehicle on any street, public area, footpath, or public reserve adjoining or in the vicinity of Lot 2218 in Deposited Plan 1043584, also known as 53 Turbott Avenue, Harrington Park.