Schematic diagrams might not be sufficient for trial

The long awaited decision in Jeshing Property Management Pty Ltd v Yang [2022] VSC 306 has been handed down by the Supreme Court.

This was probably the most heavily contested restrictive covenant case since Prowse v Johnston and resulted in the dismissal of an application to modify a single dwelling covenant to allow five dwellings at 16 St Georges Road, Toorak.

As is often the case, restrictive covenant applications are the plaintiff’s to lose, and here too, the Court found the plaintiff had not discharged its onus to prove an absence of substantial injury to beneficiaries.

The Court made adverse observations about the plaintiff having not prepared detailed plans in support of the application. Rather, Annexure A to the Originating Motion provided an annotated two dimensional building envelope:

Matthews AsJ explained:

338. For the reasons given above, I am not satisfied that there will be no substantial injury to any of the Defendants as a result of the Plaintiffs’ proposal. As a consequence, the s 84(1)(c) Application will be refused.

339. Before moving on, I wish to say something further about the way that the Plaintiffs put their case in respect of the Modification Applications, and it is convenient to do so here.  The Plaintiffs clearly made a decision to pursue the Modification Applications without providing detailed drawings or plans of their proposal; rather, the detail of the proposal was confined to the Proposed Envelope.  That was their choice, and they were entitled to run their case that way if they saw fit.  As noted earlier, having made that choice, they then have to bear the consequences of it in terms of not being able to clearly articulate the changes which may occur and whether they will be substantially injurious to the Defendants.

Schematic plans such as those shown above, may still be sufficient for unopposed applications or indeed for mediated settlements, but this decision suggests that plaintiffs take a risk by not preparing architectural drawings if the modification application proceeds to trial.