PINK v CUMMINGS [2000] NSWSC 1114

PINK v CUMMINGS [2000] NSWSC 1114

The cross-claimants failed to establish jurisdiction for modification under s 89 because the land could continue to be reasonably used in its existing manner, the covenant secured practical benefits to the plaintiffs by protecting views and amenity, and the proposed modification would substantially injure the plaintiffs through real impairment of views, privacy and noise amenity and demonstrated economic loss.

Jurisdiction
Australia
Judgment Date
13 December 2000
Procedural Posture
Equity Proceedings Concerning Restrictive Covenant; Cross Claim for Variation of Covenant Under S 89 of the Conveyancing Act / Hearing Before Master Macready
Outcome
Cross claim dismissed; defendants restrained from building within the specified setback and ordered to pay plaintiffs' costs.
Legal Topics
['restrictive Covenants' 'modification of Covenant' 'reasonable User of Burdened Land' 'practical Benefit' 'substantial Injury' 'views and Amenity']
['real Property' 'equity'] ['restrictive Covenants' 'modification of Covenant' 'reasonable User of Burdened Land' 'practical Benefit' 'substantial Injury' 'views and Amenity']

Case Brief

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Procedural Posture

Equity Proceedings Concerning Restrictive Covenant; Cross Claim for Variation of Covenant Under S 89 of the Conveyancing Act / Hearing Before Master Macready

Legal Issues

  1. 1 ['Whether the continued unmodified existence of the restrictive covenant would impede the reasonable user of 10 Hanly Street without securing practical benefit to the plaintiffs.' 'Whether the proposed modification of the restrictive covenant would substantially injure the plaintiffs as persons entitled to the benefit of the covenant.' "Whether proposed decking and roofing works would diminish the plaintiffs' views, amenity, privacy or property value."]

Ratio Decidendi

The cross-claimants failed to establish jurisdiction for modification under s 89 because the land could continue to be reasonably used in its existing manner, the covenant secured practical benefits to the plaintiffs by protecting views and amenity, and the proposed modification would substantially injure the plaintiffs through real impairment of views, privacy and noise amenity and demonstrated economic loss.

Court Disposition

Cross claim dismissed; defendants restrained from building within the specified setback and ordered to pay plaintiffs' costs.

Orders

  • ['I dismiss the cross claim.' 'I restrain the defendants from erecting any building or portion of a building within 42 feet 6 inches from the eastern alignment of Hanly Street on the property lot 2 section 30 in deposited plan 309 and known as 10 Hanly Street, Redhead in the State of New South Wales.' "Order the...