HIGH COURT OF AUSTRALIA
KIEFEL CJ,
GAGELER, KEANE, GORDON AND EDELMAN JJNICK DEGUISA & ANOR APPELLANTS
AND
ANN LYNN & ORS RESPONDENTS
Deguisa v Lynn
[2020] HCA 39
Date of Hearing: 2 September 2020
Date of Judgment: 4 November 2020A4/2020
ORDER
1.Appeal allowed.
2. Set aside the orders of the Full Court of the Supreme Court of South Australia made on 5 September 2019 and 3 March 2020 and, in their place, order that:
(a) the appeal to that Court be allowed;
(b) paragraphs 1, 3, 4, 7 and 8 of the orders of the District Court of South Australia made on 29 August 2018 in matters DCCIV 1750 of 2016 and DCCIV 597 of 2018 be set aside and, in their place, it be ordered that:
(i)the balance of the plaintiffs' actions be dismissed; and
(ii)the plaintiffs pay the defendants' costs in both matters; and
(c) the respondents pay the appellants' costs in that Court.
3. The respondents pay the appellants' costs in this Court.
On appeal from the Supreme Court of South Australia
Representation
A L Tokley QC and H M Heuzenroeder for the appellants (instructed by Clarke Hemmerling Lawyers)
W J N Wells QC with R Ross-Smith for the respondents (instructed by Lindbloms Lawyers)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Deguisa v Lynn
Real property – Torrens system – Where appellants registered proprietors of land – Where appellants obtained planning approval to subdivide land and build two townhouses – Where present certificate of title for land referred to memorandum of encumbrance which prohibited erection of any buildings other than "a dwellinghouse" and prohibited "multiple dwellings" – Where back‑cover sheet of memorandum of encumbrance had typed statement indicating that encumbrance formed part of common building scheme – Where neither memorandum of encumbrance nor present certificate of title identified other lots benefited by restrictive covenants in memorandum of encumbrance – Where s 69 of Real Property Act 1886 (SA) provided title to land indefeasible subject to encumbrances and interests "notified" on original certificate of title of such land – Whether appellants were notified of restrictive covenants in memorandum of encumbrance in accordance with s 69.
Words and phrases – "cancelled certificate of title", "certificate of title", "common building scheme", "encumbrance", "memorandum of encumbrance", "notice", "notified", "notified on the certificate of title", "prudent conveyancer", "purpose of the Torrens system", "Register Book", "restrictive covenants", "search and inspection", "searches of the Register", "sufficiently notified", "title", "title by registration", "title of the registered proprietor", "Torrens system".
Real Property Act 1886 (SA), ss 51B, 69.
KIEFEL CJ, GAGELER, KEANE, GORDON AND EDELMAN JJ. Robert Richard Torrens, a native of Cork in Ireland[1], by his vision, energy and tenacity, secured for his adoptive home, South Australia, the manifold benefits of the system of land title by registration which bears his name. The Torrens reform group was multidisciplinary, drew on international comparative law analysis…
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- AGLC
- Deguisa v Lynn [2020] HCA 39
- Case
- [2020] HCA 39
- Decision Date
CaseChat Overview and Summary
The central legal issue before the High Court was whether the appellants were sufficiently notified of the restrictive covenants contained within the memorandum of encumbrance, in accordance with section 69 of the *Real Property Act 1886* (SA). This section provides that title to land is indefeasible, subject only to encumbrances and interests that are "notified" on the original certificate of title for that land. The court was required to determine what constitutes sufficient notification under this provision, particularly in the context of a common building scheme and the purpose of the Torrens system.
The High Court reasoned that a person dealing with a registered proprietor in reliance on the State's guarantee of title, as disclosed by the certificate of title, should not be put on inquiry beyond what is notified on that certificate. For a common building scheme to operate consistently with the *Real Property Act*, the benefit of any restrictive covenant must be notified on the certificate of title of the burdened land, or by express reference in a memorial on the certificate of title to other registered instruments containing that information. The court found that the present certificate of title for the land in question did not contain a memorial disclosing any registered instrument showing the other lots that were said to have the benefit of the restrictive covenants. Therefore, the appellants' contention that they were not sufficiently notified was accepted.
Consequently, the High Court allowed the appeal, setting aside the orders of the Full Court of the Supreme Court of South Australia and the District Court of South Australia. The High Court ordered that the respondents' actions be dismissed and that the respondents pay the appellants' costs in both the High Court and the courts below.
Orders
Orders of the court
1. Appeal allowed.
2. Set aside the orders of the Full Court of the Supreme Court of South Australia made on 5 September 2019 and 3 March 2020 and, in their place, order that:
(a) the appeal to that Court be allowed;
(b) paragraphs 1, 3, 4, 7 and 8 of the orders of the District Court of South Australia made on 29 August 2018 in matters DCCIV 1750 of 2016 and DCCIV 597 of 2018 be set aside and, in their place, it be ordered that:
(i) the balance of the plaintiffs' actions be dismissed; and
(ii) the plaintiffs pay the defendants' costs in both matters; and
(c) the respondents pay the appellants' costs in that Court.
3. The respondents pay the appellants' costs in this Court.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Established by: KIEFEL CJ, GAGELER, KEANE, GORDON AND EDELMAN JJ
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