No.
5926
of
2002
- This is an application pursuant to s 84(2)(b) of the
Property Law Act 1958 for a declaration as to the true construction of a
restrictive covenant affecting lot 3 on plan of Subdivision No 205935Q
which
relates to land in Buchanan's Road, Berwick. The plaintiffs are the
registered proprietors of lot 3 on that plan of subdivision.
The first and
second defendants, Peter William Tonks and Leonie Jean Tonks are the owners of
lot 1 on the same plan of subdivision
and the third and fourth defendants
Stephen Ross Woolsey and Julie Annette Woolsey are the owners of lot 2. Their
properties are
subject to similar restrictive covenants.
- The restrictive covenant which affects lots 2 and 3 on the Plan
of Subdivision is in the following terms:-
". . . (the registered proprietor for the time being) will not
erect or cause or permit to be erected on the land hereby transferred
or any
part thereof any building other than a dwelling house.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . .
. . . . . . . . . . . . . . . . . . . . . . ."
That which affects lot 1 has the words "& domestic out
buildings" added after the words "dwelling house". The reason for this
difference is not apparent but is, in any event, immaterial to the process of
construction which the Court must carry out in respect
of the covenant on lot
3.
- The necessity for the Court to construe this restrictive
covenant has arisen because of the desire by the plaintiffs to erect more
than
one dwelling house on the lot which they own, alternatively to offer the
property for sale as a property upon which more than
one dwelling house could
be built. Their lot, lot 3, is the rear block of the three lot subdivision
having access to the street
by what is commonly referred to as a "battleaxe"
configuration. It is considerably larger than lots 1 and 2.
- The defendants, who enjoy the benefit of the covenant imposed
upon lot 3, contend that it restricts the plaintiffs (and anyone to
whom they
sell that lot) to the construction of one house only upon their
land.
- The question to be decided, as a matter of construction of the
restrictive covenant, is whether the operative part of the covenant
prohibits
the construction of more than one house on any of these blocks and in
particular on lot 3.
- Although there may be other persons interested in restricting
building on lot 3 of this subdivision to a single house, the presence
of the
owners of lots 1 and 2 before the Court as defendants who put that contention
ensures that there is appropriate contradiction
of the plaintiffs' case and
obviates the need for further consideration as to whether any other interested
parties ought to have
been joined.
- The construction of a restrictive covenant is approached by the
Court in the same way it would approach the construction of any
other document
recording an agreement between parties. In this case the covenant has its
origins in a contract of sale between one
Alice Gamble and the plaintiffs. The
covenant was registered on their title on 16 February 1990.
- The object of interpretation is to discover the intention of
the parties as revealed by the language they used in the document in
question.
Although both the plaintiffs and the defendants in this case filed affidavits,
counsel conceded that the Court was not
entitled to approach the task of
construction by reference to evidence as to what the parties to the original
contract of sale, the
present proprietors of the relevant property or, for that
matter anyone else thought the covenant meant. The matter is purely a
question
of construction, approached against the background of the facts which existed
at the time the contract was entered into.
- Mr J Brett, of counsel for the defendants, submitted
that one's immediate impression upon reading the covenant was that
it would
prohibit more than one house being built on lot 3. He sought support for this
submission from the Oxford English Dictionary
which, not surprisingly, defined
"a" as variously "one", "some" or "any" and also, in a more definite sense as
"one" or "a certain".
He referred to authority ranging from that of a single
judge of this Court, Smith J in Natraine Nominees Pty Ltd v Patton and
anor[1] to an unreported decision of
the Court of Appeal of Utah[2], but no decision
to which he referred dealt with the precise words of this
covenant.
- In Natraine, Smith J construed a covenant which
provided that:-
". . . no building may be erected . . . except a brick building to
be used exclusively as a residence or dwelling house only or out
building . . .
in connection with such brick building",
as permitting the erection of a single residence only, although
his Honour held that such single residence could contain more than
one
residential area. This covenant is clearly distinguishable from that with
which the Court is currently concerned in that it
commences with a prohibition
on building generally, subject to just one exception. That exception is a
brick building to be used
exclusively as a residence. Notwithstanding
Mr Brett's cogent and lucid submissions on this case I do not consider it
of assistance
in resolving the problem with which I am presently confronted.
The general prohibition with which the Natraine covenant commences could
easily have been made subject to a plurality of exceptions. It wasn't,
rendering Smith J's decision
inevitable.
- In Munns v Watson[3]
Lowe J construed a covenant that:-
". . . no building shall be erected by the covenanting parties on
the said lot except a double fronted house with outbuildings for
residential
purposes",
as permitting the erection of a double fronted villa containing
two residences. His Honour declined to answer a question as to the
nature and
extent of the restriction imposed by the covenant but contented himself with
merely stating that he did not consider the
building proposed would breach
it.
- In the Utah case to which I have already referred the Court of
Appeal considered that the indefinite article "a" does not always
mean one.
However, in that case a covenant which limited the types of buildings on the
subject land to "a one family dwelling house"
had to be interpreted as
restricting the property owner to the building of only one house. It could
have meant nothing else.
- Other cases from England and Scotland relied upon by
Mr Brett as analogous were not of great assistance in construing the
covenant
under consideration. The richness of the English language is such
that even slight changes in the wording used or even in the order
in which
words are used can have a significant effect on the meaning of phrases which,
at first glance, appear similar.[4]
- Mr G Baker of counsel for the plaintiffs called, in aid
of his argument that the covenant did not restrict his clients to the
building
of only one house, s 61 (c) of the Property Law Act 1958 which
provides that in all deeds, contracts, wills, orders and other instruments,
unless the context otherwise requires, the singular
includes the plural and
vice versa. But this common device used in statutes concerned with
interpretation is always subject to the
context in which the words are used.
It does not answer the question for the Court in this case.
- The task of construction commences with a determination of the
purpose for which the covenant was inserted in the original contract.
In this
case there appear to be two possible answers to this inquiry. The covenant
could be directed to ensuring that lot 3, and
for that matter the whole
subdivision, was maintained as a residential area without restriction on the
number of dwelling houses
constructed on each block. Alternatively, the
purpose of the covenant might have been not only to maintain the residential
character
of the area but also to restrict the number of dwelling houses to one
on each block.
- Mr Brett argued that having regard to the battleaxe
configuration of lot 3, if the covenant did not restrict the number of
dwelling
houses which could be built on it to one, traffic, including vehicular traffic,
on the driveway of lot 3 (the handle of
the battleaxe) would be considerably
increased to the detriment of the amenity of the other two blocks. This would
be particularly
so with respect to the block adjacent to lot 3's driveway, lot
2. This, argues Mr Brett, is the context in which the restrictive
covenant was inserted in the original contract of sale and is the context,
accordingly, in which it falls to be construed. But this
is only one aspect of
the context in which the covenant was created. The size of lot 3 might not be
an immaterial consideration.
Clearly more than one dwelling could fit
comfortably within its area.
- Attractive as Mr Brett's argument appears, I am unable to
accept it. If the parties to the original covenant had wished to restrict
the
number of dwelling houses built on each of these lots they could have done so
very simply and definitively by replacing the word
"a" in the covenant with the
word "one", or by making some similar simple amendment. The true construction
of the covenant is that
it prohibits the placing of any building on the land
unless that building is a dwelling house. Provided that any building
constructed can be properly described as a dwelling house there would
be no
breach of the covenant. The covenant says nothing, in my opinion, as to the
number of dwelling houses which might be built.
To import a restriction as to
the number of houses which might be built on lot 3 into the covenant would
extend its effect beyond
the words used by the parties without any warrant for
doing so.
- The plaintiffs are entitled to a declaration pursuant to
s 84(2)(b) of the Property Law Act 1958 that upon the true
construction of the covenant contained in the instrument of transfer in respect
of lot 3 on plan of subdivision
no LP205935Q, being the whole of the land
in Certificate of Title Volume 9747 Folio 756, in which Alice Gamble was
the
transferor and the plaintiffs were the transferees, and which was
registered on 16 February 1990, it does not restrict the registered
proprietors
from erecting more than one dwelling house on the said lot. There will be a
declaration accordingly.
- The plaintiffs are, prima facie, entitled to an order
for costs. Should the defendants wish to contest this position they should
arrange with my Associate for the
matter to be listed for argument as to costs
at a convenient time. Otherwise, there will be an order that the defendants
pay the
plaintiffs costs to be taxed.
---
[1] [2000] VSC 303
[2] Holladay Duplex Management Co v
Howells (unreported 25 April 2002) [2002] Ut App 125
[3] [1937] VLR 178
[4] See Re Marshall & Scott's Contract
[1938] VLR 98 at 100 per Mann CJ.
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URL: http://www.austlii.edu.au/au/cases/vic/VSC/2003/195.html
VSC 195 
(13 June 2003)