Jayasinghe v Perry [2025] VSC 751
Vacant land sold by P to J was subject to a restrictive covenant as to building height to protect ‘rather stunning views’. After the new house exceeded the height limit by 3m, J sought to vary the covenant7. When an issue arose on how the underlying statutory provision was to be interpreted, the judge (at [126]) invoked the presumption that, where more than one option is open, ‘the interpretation consonant with the common law is to be preferred’8. This supported variation of the covenant in J’s favour – duly ordered.
Comment – other cases stress the weak nature of this presumption, one judge saying it is ‘inconsistent with modern experience and borders on fiction’9.
This principle is from Episode 128 of interpretation NOW!
Footnotes:
7 s 84(1) Property Law Act 1958 (Vic).
8 Herzfeld, Prince & Tully Interpretation (2013) [25.1.1980].
9 Gifford [2003] HCA 33 [36], cf Kassam [2021] NSWCA 299 [90].