MERRIFIELD CORPORATION PTY LTD and Others v FAL MICKLEHAM PTY LTD (No 2)

78 VR 488·Harris J
78 VR 488
MERRIFIELD CORPORATION PTY LTD and Others v FAL MICKLEHAM PTY LTD (No 2) Supreme Court of VictoriaHarris J 17, 19, 20, 23, 24, 26 September 2024, 2 April, 3 July 2025[2025] VSC 390Real propertyRestrictive covenantEnforcementEffect of notification of covenant on titleWhether restrictive covenant ‘touched and concerned’ benefitted landWhether onus of proof on party seeking to enforce covenant against successor in title to original covenantorTransfer of Land Act 1958 (Vic), ss 41, 42, 88.

Sections 84(1)(a) and (c) of the Property Law Act 1958 (Vic) (PLA) empowered the Court upon application of any person interested in any land affected by any restriction arising under a covenant to discharge or modify any such restriction upon being satisfied, relevantly, either ‘that the continued existence thereof would impede the reasonable user of the land without securing practical benefits to other persons’ or ‘that the proposed discharge or modification will not substantially injure the persons entitled to the benefit of the restriction’.

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