Levi v Spicer [2001] NSWSC 924

Reported Decision : (2002) NSW ConvR 56-009

New South Wales Supreme Court

CITATION : Levi v Spicer [2001] NSWSC 924 revised - 26/10/2001 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 2417 of 2000 HEARING DATE(S) : 13/6/01, 26/7/01, 11/9/01 JUDGMENT DATE : 24 October 2001

PARTIES : Michael John Levi and Veronica Anne Levi v Dorothy Spicer JUDGMENT OF : Master Macready at 1

COUNSEL : Mr M.A. Bradford for plaintiffs Mr M. Gorrick for defendant SOLICITORS : Marina Voncina Solicitor for plaintiffs Marsdens Solicitors for defendant CATCHWORDS : Real Property. Restrictive covenants. - Application for modification under s 89(1)(c) of the Conveyancing Act to permit a colourbond, rather than a brick and tile garage, to be constructed. - Modification refused. LEGISLATION CITED : Webster v Bradac (1993) 5 BPR 12,032 Re Parimax (SA) Pty Ltd 56 SR 130 CASES CITED : Re Chamberlain and the Conveyancing Act (1969) 90 WN 585 Mogensen & Anor v Portuland Developments Pty Ltd (1983) NSW Con 55-116 Pieper v Edwards (1982) 1 NSWLR 336 at 340 DECISION : Paragraph 33

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1 MASTER: This is an application pursuant to section 89(1)(c) of the Conveyancing Act for the modification of a covenant which affects the plaintiff's' land. That land is at Silverdale in the lower Blue Mountains. The terms of the covenant in question so far as they are relevant to the matters before the Court are as follows:- "1. That no more than one main building shall be erected or permitted to remain on any lot burdened. 2. That no main building shall be erected or used on any lot burdened hereby otherwise than as a single private dwelling house provided that this restriction shall not prevent the use of part of any such building by a Medical Practitioner or Dentist or Solicitor in the practice of his profession, and provided such professional use is approved by Wollondilly Shire Council.