Coshott v Downs

In *Coshott v Downs*, the New South Wales Court of Appeal considered a dispute between the appellant, Coshott, and the respondents, Downs and another. The core of the disagreement concerned the interpretation and enforceability of a restrictive covenant contained within a deed of conveyance relating to a parcel of land. Coshott sought to have the covenant declared invalid and unenforceable, while Downs sought to uphold its validity and prevent Coshott from acting in contravention of its terms.

The central legal issues before the Court of Appeal were whether the restrictive covenant was valid and enforceable at common law and in equity, and if so, whether it ran with the land so as to bind the appellant as the successor in title. Specifically, the Court had to determine if the covenant satisfied the requirements for a restrictive covenant to be considered a burden on the land that could be enforced against subsequent purchasers.

The Court of Appeal, in its reasoning, applied established principles of land law concerning restrictive covenants. It examined whether the covenant was intended to benefit a dominant tenement and burden a servient tenement, and whether it touched and concerned the land. The Court found that the covenant was indeed a valid restrictive covenant that ran with the land. The reasoning focused on the nature of the restriction imposed and its direct relationship to the use and enjoyment of the land itself, rather than being a personal obligation.

Consequently, the Court of Appeal dismissed the appeal, upholding the primary judge's decision. The restrictive covenant was found to be valid and enforceable against the appellant, and the orders made at first instance were affirmed.