Jonnel Assocs Pty Ltd v De Bono [2001] NSWSC 883

Reported Decision : (2002) NSW ConvR 56-004

New South Wales Supreme Court

CITATION : Jonnel Assocs Pty Ltd v De Bono [2001] NSWSC 883 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 4466/01 HEARING DATE(S) : 4 October 2001 JUDGMENT DATE : 4 October 2001

PARTIES : Jonnel Associates Pty Limited (P) Victor Lawrence De Bono (D) JUDGMENT OF : Hamilton J

COUNSEL : R J Colquhoun (P) No appearance (D) SOLICITORS : J A Vaughan & Walker Smith (P) No appearance (D) CATCHWORDS : REAL PROPERTY [430] - Restrictive covenants - Building and other schemes - Torrens system - Sheds erected in numbers and of materials contrary to covenant. LEGISLATION CITED : Conveyancing Act 1919 s88B DECISION : Injunction to demolish sheds granted.

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

HAMILTON J

THURSDAY, 4 OCTOBER 2001

4466/01 JONNEL ASSOCIATES PTY LIMITED v DE BONO

JUDGMENT 1 HIS HONOUR: This is the final hearing of proceedings for injunctive relief relating to sheds erected by the defendant on Lot 36 in DP1005047 in Malcolm's Road, Pampoolah near Taree. The plaintiff was the developer of this rural subdivision and brings the proceedings as the registered proprietor of Lot 32. Lot 36 was sold by the plaintiff to the defendant in 1999 and it was a condition of this sale, as of others in the subdivision, that there be a restriction on the use of the land sold by instrument under s 88B of the Conveyancing Act 1919. Lot 32, still held by the plaintiff, is one of the lots entitled to the benefit of that restriction. There is in evidence a search which shows that that restriction is in fact registered in the Land Titles Office. The search is a search of certificate of title folio identifier 36/1005047, which is the title to the defendant's land. The terms of the restriction are as follows: "3(a) No building other than a main building which shall be a private dwelling house and a second non-residential building shall be erected or permitted to remain on any lot burdened. No other building or structure shall be erected or permitted to remain on any lot burdened which does not share a common wall with part of the main building.