Burke v Yurilla SA Pty Ltd and Others No. 1614/90 Judgment No. 3027 Number of Pages 15 Real Property

This case concerned a dispute regarding the enforceability of restrictive covenants in a building scheme established through a registered encumbrance. The plaintiff, the registered proprietor of an allotment in Bellevue Heights, sought a determination on whether certain restrictive covenants in the encumbrance were enforceable against him. The Full Court of the Supreme Court of South Australia, comprising King CJ, Debelle J, and Cox J, was tasked with answering the question of law raised in the special case.

The court found that the restrictive covenants were enforceable against the plaintiff. It was established that the encumbrance, which included the restrictive covenants, was registrable under the Real Property Act, 1886. The court followed the precedent set by Blacks Ltd v. Rix (1962) SASR 161, which held that restrictive covenants in a registered encumbrance were enforceable against a successor in title of the original encumbrancer. The court also considered the equitable principle that a restrictive covenant will run with the land if the covenant is for the benefit of some parcel of land, or possibly some interest in land, and the land entitled to the benefit of the covenant can be identified from the registered document or from the Register.

The court acknowledged that the decision in Blacks Ltd v. Rix had been criticised but chose not to overrule it. The court emphasised the importance of adhering to long-standing decisions and practices, particularly in cases where parties have arranged their affairs based on the settled law. The court also considered the potential negative impact on property rights and the value of land if the covenants were held to be unenforceable.

In conclusion, the Full Court held that there was nothing in the operation of the Real Property Act, 1886 which rendered the covenants contained in the encumbrance, the subject of this action, unenforceable against the plaintiff. The court answered the question in the special case accordingly.