Sumervale Pty Ltd v Viva Energy Refining Pty Ltd

[2024] VSCA 140

Victorian Court of Appeal

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For Australian Law.

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Interrogate

Catchwords

1. Real Property
2. › Restrictive covenants
3. › Discharge or modification
4. › Power of court under s 84(1)(c) Property Law Act 1958 (Vic)
5. › Substantial injury to persons entitled to benefit of restriction
6. › Whether injury must be related to intended purpose of covenant
7. › Whether loss of protection from commercial competition constitutes substantial injury
8. › Property Law Act 1958 (Vic), s 84(1)(c)
1. Real Property
2. › Restrictive covenants
3. › Construction of covenants
4. › Purpose of restrictions within covenant
5. › Whether individual restrictions to be construed separately or by reference to covenant as a whole
6. › Principles of construction applicable to restrictive covenants on title
1. Real Property
2. › Restrictive covenants
3. › Discharge or modification
4. › Assessment of substantial injury
5. › Whether court may have regard to discharge of similar covenants on other land in neighbourhood
6. › Property Law Act 1958 (Vic), s 84(1)(c)

Quick Take

To resist discharge of restrictive covenants under s 84(1)(c), the claimant must demonstrate that the claimed injury relates to the intended purpose of the covenant, not merely any actual benefit enjoyed; loss of protection from commercial competition will not constitute substantial injury where the covenant's purpose was to preserve residential amenity.