Double Bay Bowling Club v Council of the Municipality of Woollahra trading as Woollahra Municipal Council [2020] NSWSC 1861

Supreme Court New South Wales

Medium Neutral Citation: Double Bay Bowling Club v Council of the Municipality of Woollahra trading as Woollahra Municipal Council [2020] NSWSC 1861 Hearing dates: 26, 27, 28 and 29 October 2020 Date of orders: 17 December 2020 Decision date: 08 December 2020 Jurisdiction: Equity - Real Property List Before: Rein J Decision: [112] Catchwords: LAND LAW — Restrictive covenants — Extinguishment of restrictive covenants — Extinguishment by order of court – in 1948 Woollahra Municipal Council ("the Council") sold Lots 9 and 101 to Double Bay Bowling Club ("the Club") and imposed as a condition of sale a Restrictive Covenant which prohibited the Club from using the lots for any purpose other than a recreational purpose connected with a bowling club ("the Covenant"). Lot 101 is used as a bowling club. Lot 9 had, until 2018, a cottage which was rented to the Club's greenkeeper. The cottage has been demolished and two townhouses are now being constructed on Lot 9 pursuant to a development consent given by the Council in 2017 – the Club seeks to have the Covenant removed from Lot 9 on a number of grounds including obsolescence – town planning evidence that use of Lot 9 for recreational purposes is now prohibited under current zoning and use as a residence for a greenkeeper for the Club's bowling club (at Lot 101) was in breach of the Covenant and was not a recreational purpose – Consideration of discretionary factors under s89(1) of the Conveyancing Act 1919 (NSW) ("the Conveyancing Act") – Held: the Covenant imposed on Lot 9 should be extinguished pursuant to s 89(1)(a) and (c) of the Conveyancing Act because it was obsolete, impeded the reasonable use of the lot and because there was no practical benefit that would be lost or likelihood of harm to the Council if the Covenant were extinguished. CONTRACTS — Formation — Agreement – the Council asserts it and the Club entered into a binding agreement pursuant to which the Council agreed to removal of the Covenant and in return the Club agreed to a new restriction that would require the Club on sale of Lot 9 to pay to the Council an amount based on what was described as the "Before and After Method" of valuation – whether the parties entered into a binding agreement – whether a typed name in email constitutes a signature – Masters v Cameron categories of agreement considered and whether the parties intended to make a concluded bargain; whether the requirements of s 54A of the Conveyancing Act were met – Held: no binding agreement was entered into between the parties. Alternatively, if there was a binding agreement, that agreement was abandoned by the parties. Legislation Cited: Conveyancing Act 1919 (NSW) Electronic Transactions Act 2000 (NSW) Environmental Planning and Assessment Act 1979 (NSW) Interpretation Act 1987 (NSW) Land and Environment Court Act 1979 (NSW) Local Government Act 1919-1943 (NSW) Woollahra Local Environmental Plan 2014 (NSW) Cases Cited: Ashfield Municipal Council v Australian College of Physical Education Ltd (1992) 76 LGRA 151 Australia & New Zealand Banking Group Ltd v Widin (1990) 102 ALR 289 Baulkham Hills Private Hospital Pty Ltd v GR Securities Pty Ltd (1986) 40 NSWLR 622 Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404 Brambles Holdings Ltd v Bathurst City Council [2001] NSWCA 61; 53 NSWLR 153 Capital Club Pty Ltd v Commissioner of State Revenue [2007] VSC 108; (2007) 17 VR 357 Claremont 24-7 Pty Ltd v Invox Pty Ltd [No 2] [2015] WASC 220 Driscoll v Church Commissioners for England [1957] 1 QB 330 Durian (Holdings) Pty Ltd v Cavacourt Pty Ltd [2000] NSWCA 28 Effeney v Millar Investments Pty Ltd [2011] NSWSC 708 Essendon Corporation v Cox [1967] VR 545 Fincob Pty Ltd v Campbelltown City Council [2010] NSWSC 349 Fitzgerald v Masters (1956) 95 CLR 420 Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157 Frasers Lorne Pty Ltd v Joyce Goldsworthy Burke [2008] NSWSC 743; (2008) 14 BPR 26,131 Golden Ocean Group Ltd v Salgaocar Mining Industries PVT Ltd [2012] 1 WLR 3674 Harvey v Edwards Dunlop & Co Ltd (1927) 39 CLR 302 HDI Global Specialty SE v Wonkana No. 3 Pty Ltd [2020] NSWCA 296 John Hillam v JPSF Pty Ltd [2017] NSWSC 1510 Kassabian & Rawstron Investments Pty Ltd v Lagonicos (1993) NSW ConvR 55-690 Kastro Pty Ltd v ABD Holdings Pty Ltd [2008] NSWSC 1291 Laris v Lin (No 2) (2016) 18 BPR 35,917 Lizzio v Ryde Municipal Council (1983) 155 CLR 211 Loclot Pty Ltd v Pullen [2003] NSWSC 67 Masters v Cameron (1954) 91 CLR 353 Northern Territory v Griffiths [2019] HCA 7; (2019) 364 ALR 208 Pavlovic v Universal Music Australia Pty Ltd (2015) 90 NSWLR 605 Re Markin; Re Roberts [1966] VR 494 Re Mason and the Conveyancing Act [1962] NSWR 762 Re Robinson [1972] VR 278 Re Truman, Hanbury, Buxton & Co Ltd's Application [1956] 1 QB 261 Spencer v The Commonwealth of Australia [1907] HCA 82; (1907) 14 ALR 253 Stellard Pty Ltd v North Queensland Fuel Pty Ltd [2015] QSC 119 Stockport Metropolitan Borough Council v Alwiyah Developments [1983] 52 P&CR 278 Summers v Commonwealth (1918) 25 CLR 144 The Owners – Strata Plan 85044 v Murrell; Murrell v The Owners – Strata Plan 85044 [2020] NSWSC 20 Thomson v McInnes (1911) 12 CLR 562 Webster v Bradac (1993) 5 BPR 12,032 Welsh v Gatchell [2009] 1 NZLR 241 Texts Cited: Edgeworth, B, Butt's Land Law (Thomson Reuters, 7th ed, 2017) Heydon, JD, Heydon on Contract (Thomson Reuters, 2019) Category: Principal judgment Parties: Double Bay Bowling Club (Plaintiff) Council of the Municipality of Woollahra trading as Woollahra Municipal Council (Defendant) Representation: Counsel: Mr J Lazarus SC with Mr M Sheldon (Plaintiff) Mr T Lynch SC with Mr D Meyerowitz-Katz (Defendant)