Evans v Miller

[2011] WASCA 89

Western Australia Court of Appeal

Built by Barristers,
For Australian Law.

See how it works

Interrogate

Catchwords

1. Property Law
2. › Restrictive covenants
3. › Breach of restrictive covenant
4. › Mandatory injunction to remove structures
5. › Whether injunction or damages in lieu appropriate
6. › Unreasonableness of contravener's conduct
7. › Diminution of views and property value
1. Appeal
2. › Appellate review of discretionary decision
3. › Whether primary judge erred in exercise of discretion to grant mandatory injunction
4. › House v The King principles
5. › Whether failure to take into account material consideration
1. Equity
2. › Injunctions
3. › Mandatory injunction
4. › Breach of restrictive covenant
5. › Whether injury small and capable of compensation by small money payment
6. › Shelfer v City of London Electric Lighting Co criteria

Quick Take

The unreasonableness of a contravener's conduct is a relevant consideration in the exercise of discretion to grant an injunction for breach of a restrictive covenant, even absent proof that the breach was done with actual knowledge that it was in breach. A purchaser of land with the benefit of a restrictive covenant is not required to have ascertained whether existing structures breach the covenant before purchase in order to enforce it, and the fact that the contravener was in occupation before the covenantee purchased does not relieve the contravener from a mandatory injunction.