Phillip Arthur Hosking & Anor v Peter Haas & Anor [2009] NSWSC 624

Phillip Arthur Hosking & Anor v Peter Haas & Anor [2009] NSWSC 624

The benefit of the restrictive covenant on Lot 12 cannot be annexed to Lot 15 because the plaintiffs' lot had been disposed of before the covenant was created; thus, unless a common building scheme exists, the plaintiffs are not entitled to enforce the covenant against the defendants. Determination as to the existence of a common building scheme and the question of notice to other lot owners are deferred for further consideration.

Parties
Plaintiff: Phillip Arthur Hosking; Plaintiff: Dorothy Hosking; Defendant: Peter Haas; Defendant: Evelyn Haas
Jurisdiction
Australia
Judgment Date
03 July 2009
Procedural Posture
Civil Equity / Interlocutory Determination Whether Benefit of Covenant Annexed and Whether Common Building Scheme Exists
Outcome
Consideration deferred pending further submissions; no final determination on enforceability or demolition ordered at this time.
Legal Topics
Benefit of Covenant, Annexation of Benefit, Common Building Scheme, Restrictive Covenants, Subdivision, Procedural Notification of Interested Parties
Land Law Equity Benefit of Covenant Annexation of Benefit Common Building Scheme Restrictive Covenants Subdivision Procedural Notification of Interested Parties

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Parties

Phillip Arthur Hosking

Plaintiff

Dorothy Hosking

Plaintiff

Peter Haas

Defendant

Evelyn Haas

Defendant

Procedural Posture

Civil Equity / Interlocutory Determination Whether Benefit of Covenant Annexed and Whether Common Building Scheme Exists

Legal Issues

  1. 1 Whether the benefit of the defendants' covenant was annexed to the plaintiffs' land
  2. 2 Whether a common building scheme exists entitling the plaintiffs to enforce the covenant
  3. 3 Whether the other lot owners should be notified prior to decision as to existence of scheme

Ratio Decidendi

The benefit of the restrictive covenant on Lot 12 cannot be annexed to Lot 15 because the plaintiffs' lot had been disposed of before the covenant was created; thus, unless a common building scheme exists, the plaintiffs are not entitled to enforce the covenant against the defendants. Determination as to the existence of a common building scheme and the question of notice to other lot owners are deferred for further consideration.

Court Disposition

Consideration deferred pending further submissions; no final determination on enforceability or demolition ordered at this time.

Orders

  • Matter listed for further directions on notification to other lot owners and Council regarding potential common building scheme.