Levi & Anor v Spicer [2003] NSWSC 183

Levi & Anor v Spicer [2003] NSWSC 183

No error of fact or principle was shown in the Master's decision. The Master was entitled to treat the streetscape in the immediate vicinity of the Appellants' property as a distinct consideration, to conclude that existing colorbond structures did not destroy the remaining attractive outlook, and to find that the proposed visible colorbond garage would substantially injure persons entitled to the benefit of the restrictive covenant. The refusal to modify the covenant was therefore justified.

Jurisdiction
Australia
Judgment Date
20 March 2003
Procedural Posture
Appeal From Refusal of Application Under S.89(1)(c) of the Conveyancing Act 1919 (nsw) to Modify a Restrictive Covenant / Appeal From Supreme Court Master
Outcome
Appeal dismissed.
Legal Topics
['restrictive Covenant' 'modification of Restrictive Covenant' 'substantial Injury' 'streetscape' 'appellate Review of Discretion']
['real Property' 'equity'] ['restrictive Covenant' 'modification of Restrictive Covenant' 'substantial Injury' 'streetscape' 'appellate Review of Discretion']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Appeal From Refusal of Application Under S.89(1)(c) of the Conveyancing Act 1919 (nsw) to Modify a Restrictive Covenant / Appeal From Supreme Court Master

Legal Issues

  1. 1 ["Whether the Master erred in refusing to modify restrictive covenants affecting the Appellants' land." 'Whether the proposed colorbond garage would substantially injure persons entitled to the benefit of the restrictive covenant by diminishing the streetscape and amenity of the subdivision.' 'Whether the Master erred by limiting consideration to a discrete part of Ridgehaven Road rather than the whole Silverdale Estate.' 'Whether the Master failed properly to assess existing colorbond structures and the evidence of an objector, Mr Blain.']

Ratio Decidendi

No error of fact or principle was shown in the Master's decision. The Master was entitled to treat the streetscape in the immediate vicinity of the Appellants' property as a distinct consideration, to conclude that existing colorbond structures did not destroy the remaining attractive outlook, and to find that the proposed visible colorbond garage would substantially injure persons entitled to the benefit of the restrictive covenant. The refusal to modify the covenant was therefore justified.

Court Disposition

Appeal dismissed.

Orders

  • ['Appeal dismissed.']