Re COOK SUPREME COURT OF VICTORIA GILLARD, J 5, 12, 29 June 1964 Gillard, J J , delivered the following written judgment: This is an application under the provisions of s84(1) of the Property Law Act 1958 by Lawrence Edward Cook, whom I shall hereinafter refer to as the applicant, to modify a covenant with respect to lot 85 on LP 8431. In effect, the restriction at present imposed on this lot is that only one private dwelling may be erected thereon. The applicant, who is the owner of the lot, has acquired the area contiguous to it, on the north side thereof having a frontage of 22 feet 8 inches to Loma Linda Grove, which was originally set out on the plan of subdivision as part of a drainage reserve which traverses the subdivision from east to west. The [809] applicant has now subdivided lot 85 and this reserved area into two allotments of quite reasonable dimensions. He proposes to build on one of the new allotments and to sell the other. He therefore desires to modify the original restriction on lot 85 by imposing a new restriction on each of the two lots now subdivided by him whereby one private dwelling may be built on each of such new lots. When the application came before me on 5 June the applicant proposed to rely upon the provisions of paragraph (a) of s84(1). Having regard to the provisions of that paragraph and the relevant authority interpreting the same and because of the material placed before me, the application on its face was hopeless. To do justice to the applicant's position, however, it perhaps should be added that, when the proceedings were originally initiated by the applicant, the relevant law governing the covenant in this case would probably have been covered by the Full Court decision in Re Arcade Hotel Pty Ltd, [1962] VicRp 41; [1962] VR 274. Unfortunately for the applicant, however, the effect of this case was overruled by the Transfer of Land (Restrictive Covenants) Act 1964, which came into force on 5 May 1964. With complete propriety Mr. Kendall for the applicant drew my attention to this recent statutory amendment whereby a new s79A was added to the Property Law Act 1958. This new section reads as follows: "It is hereby declared that when the benefit of a restriction as to the user of or the building on any land is or has been annexed or purports to be annexed by any instrument to other land the benefit shall unless it is expressly provided to the contrary be deemed to be and always to have been annexed to the whole and to each and every part of such other land capable of benefiting from such restriction." In consequence of this new statutory provision it would now appear that the great majority of the lots on the plan of subdivision, excepting with a certainty lots 83, 44 and 84, would have been entitled to the benefit of the restrictive covenant imposed on lot 85. Having regard to the hopelessness of the application based on paragraph (a) of s84(1), the application was adjourned and at the adjourned date the applicant sought to rely upon the provisions of paragraph (c) of s84(1) to found his application. To succeed under this paragraph the applicant must establish that the modification, if made, would not substantially injure the persons entitled to the benefit of the restriction.

# Gillard, J