Cumerlong Holdings Pty Ltd v Dalcross Properties Pty Ltd & Ors [2011] HCATrans 56

Cumerlong Holdings Pty Ltd (the appellant) sought special leave to appeal to the High Court of Australia from a decision of the Supreme Court of New South Wales Court of Appeal. The dispute concerned the interpretation of a restrictive covenant contained within a deed of transfer of land, which purported to restrict the use of the land for any purpose other than a private dwelling house. The respondents, Dalcross Properties Pty Ltd and others, were the registered proprietors of the land subject to the covenant.

The primary legal issue before the High Court was whether the restrictive covenant, as drafted, was void for uncertainty. Specifically, the court had to determine if the phrase "any purpose other than a private dwelling house" was sufficiently clear to impose a legally enforceable restriction on the use of the land. This involved considering the principles of contractual interpretation and the requirements for certainty in restrictive covenants.

The High Court granted special leave to appeal and, in a joint judgment, found that the covenant was void for uncertainty. Their Honours reasoned that the phrase "any purpose other than a private dwelling house" was ambiguous and did not clearly define the scope of the restriction. It was not possible to ascertain with sufficient certainty what uses were prohibited beyond the use as a private dwelling house, rendering the covenant unenforceable.

Consequently, the High Court allowed the appeal, set aside the orders of the Court of Appeal, and declared the restrictive covenant to be void and of no effect.