Big Country Developments v Wall

Big Country Developments Pty Ltd (the appellant) appealed to the High Court of Australia against a decision of the Supreme Court of Victoria. The dispute concerned the interpretation of a restrictive covenant registered on the title of land owned by the appellant, which purported to restrict the use of the land to residential purposes only. The respondent, a neighbouring landowner, sought to enforce this covenant against the appellant, who intended to develop the land for commercial purposes.

The High Court was required to determine whether the restrictive covenant was valid and enforceable. Specifically, the court had to consider whether the covenant "ran with the land" so as to bind successive owners, and whether it satisfied the requirements for enforceability in equity, particularly in light of the common law rules regarding covenants affecting freehold land. The central question was whether the covenant created an equitable interest that could be enforced by the respondent against the appellant.

In their joint judgment, Gummow and Hayne JJ held that the restrictive covenant was not enforceable. Their Honours applied the principles established in *Tulk v Moxhay* and subsequent authorities, which require that a restrictive covenant must "touch and concern" the land of the covenantee and that the intention of the parties must be that the covenant should bind future owners. The court found that the covenant in question, by its terms, did not impose a restriction that related to the use or enjoyment of the respondent's land. Instead, it imposed a personal obligation on the owner of the appellant's land. Consequently, the covenant did not create an equitable interest in the respondent's land capable of binding the appellant as a successor in title.

The appeal was allowed, and the orders of the Supreme Court of Victoria were set aside.