Barport Pty Ltd v Baum

[2019] VSCA 167

Victorian Court of Appeal

Built by Barristers,
For Australian Law.

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Interrogate

Catchwords

1. Real Property
2. › Restrictive covenants
3. › Construction of covenant
4. › Covenant incorporating external standard by reference
5. › Height limitation as per CASA Manual of Standards Part 139
6. › Whether covenant operative where external standard did not directly apply to the land
7. › Whether covenant imposed present obligation or was conditional on future event
1. Equity
2. › Estoppel
3. › Equitable estoppel
4. › Estoppel by silence
5. › Whether respondents induced assumption that hangar could be built to six metres
6. › Whether duty to speak arose
7. › Parties of equal bargaining power
8. › Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387
1. Consumer Law
2. › Misleading or deceptive conduct
3. › Silence as misleading conduct
4. › Whether reasonable expectation of disclosure
5. › Whether email constituted half-truth requiring correction
6. › Competition and Consumer Act 2010 (Cth), sch 2, ss 4, 18
1. Practice and Procedure
2. › Relief
3. › Injunctions
4. › Form of mandatory injunction
5. › Whether order went further than necessary to remedy breach of restrictive covenant
6. › Discretionary judgment
7. › House v The King (1936) 55 CLR 499

Quick Take

A restrictive covenant that incorporates height limitations from an external standard (such as the CASA Manual of Standards) by reference imposes a present obligation on lot owners, even where the external standard does not directly apply to the land by force of law. The covenant adopts the standard as a metric, not as a source of obligation, and its operation is not conditional on the external standard becoming directly applicable. An equivocal email stating that a building height 'may be possible' subject to final levels does not induce an assumption sufficient to found an estoppel, and there is no duty to speak where parties are of equal bargaining power and the party claiming estoppel has the obligation and capacity to verify compliance with covenants on its own title.