Re EAPE (Holdings) P/L [2019] VSC 242

Supreme Court of Victoria
Common Law Division
Lansdowne AsJ

In the matter of an application pursuant to section 84 of the Property Law Act 1958 for the modification of a restrictive covenant and In the matter of an application for the modification of the restriction arising under the covenant in transfer of land registered no. P878974A dated 26 June 1990 affecting the land at 1 Bridle Place, Pakenham, being lot 266 on Plan of Subdivision no. 212290W and being the land in Certificate of Title Volume 11512 Folio 959 by: EAPE (Holdings) P/L (ACN 081 259 789)

Judgment Date: 
15 April 2019

REAL PROPERTY - Restriction to 'one private dwelling house' in covenant - Whether modification to allow up to three dwellings would cause substantial injury to beneficiaries - Precedential effect - Impact on adjoining benefited land - Alternative development as a rooming house - Whether alternative development a genuine proposal - Whether a rooming house is permitted by the covenant - Held: yes - Consequent comparison of the benefits conferred by the restriction with those that would remain after modification - Modification granted - Property Law Act 1958 (Vic) s 84 (1)(c).

WORDS AND PHRASES - 'one private dwelling house' - Downie v Lockwood [1965] VR 258; Longo Investments Pty Ltd [2003] VSC 37; Prowse v Johnstone & Ors [2012] VSC 4 considered.