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Deguisa v Lynn

Deguisa v Lynn

Case [2019] SASCFC 107 5 September 2019

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Supreme Court of South Australia
(Full Court)
DEGUISA & ANOR v LYNN & ORS
[2019] SASCFC 107
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Peek and The Honourable Justice Hughes)
5 September 2019
REAL PROPERTY - TORRENS TITLE - RESTRICTIVE COVENANTS - ENFORCEABILITY AND EFFECT
REAL PROPERTY - RESTRICTIVE COVENANTS - BUILDING AND OTHER SCHEMES - GENERAL PRINCIPLES
REAL PROPERTY - RESTRICTIVE COVENANTS - INTERPRETATION - GENERAL PRINCIPLES
The appellants are the registered proprietors of land situated at 538 Henley Beach Road, Fulham (Lot 3). The first two respondents are the executors of the estate of the late Mrs Betty Joan Fielder, a party to the original Memorandum of Encumbrance containing the subject restrictive covenants. The third respondent is the owner of two properties, namely Lots 5 and 35.
Lot 3 was originally part of a much larger area of land (the original Fulham land) held as an estate in fee simple by Mr Oliver George Ayton (the third respondent’s maternal grandfather). After his death, the original Fulham land was transferred to Mr Keith Oliver Ayton and Mrs Betty Joan Fielder (the third respondent’s mother). Thereafter, a process of subdivision was completed whereby 54 lots were presented for sale to the public as depicted in a plan referred to as the “Gaetjens Plan”. Each lot created out of the subdivision (with the exception of Lots 5 and 21) was eventually sold with each conveyance burdening the lot by way of a registered memorandum of encumbrance imposing the same restrictive covenants.
Lot 3 was sold on 4 November 1965 to Mr Giulio Boin and Mrs Franca Boin. The Memorandum of Encumbrance into which the Boins entered contained a notation that “This encumbrance forms portion of a common Building Scheme” (the Memorandum of Encumbrance). The Memorandum of Transfer and the Memorandum of Encumbrance were registered on 19 November 1965. Lot 3 was thereafter transferred in 1967 to Mr William McKenzie and Mrs Muriel McKenzie. Mr McKenzie died in 1994 and Mrs McKenzie died in 2007, after which time the property was purchased by the appellants. The transfer to the appellants took effect on 23 January 2008.
Mrs Betty Joan Fielder died on 2 November 2014 and probate of her estate was granted to the respondents on 17 March 2015. On 16 December 2015, the appellants applied for development approval to subdivide Lot 3. The application was granted on 12 April 2016.
On 4 July 2016, the respondents, as executors of the estate of Mrs Betty Joan Fielder, lodged a caveat over Lot 3. The caveat was registered on 19 July 2016. The appellants applied to the Lands Titles Office (LTO) to remove the caveat on 2 December 2016. The respondents commenced proceedings to enforce the restrictive covenants. On 21 July 2017, Judge Tilmouth held that the respondents had standing to enforce the restrictive covenants in the Memorandum of Encumbrance; that there was a common building scheme; and that the appellants were bound by the Memorandum of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Deguisa v Lynn

Details

AGLC: Deguisa v Lynn [2019] SASCFC 107
Case: [2019] SASCFC 107
Decision Date: 5 September 2019

CaseChat Overview and Summary

The Full Court of the Supreme Court of South Australia considered the enforceability and effect of restrictive covenants registered on Torrens title land in the matter of *Deguisa v Lynn*. The dispute concerned a covenant that prohibited the construction of any building other than a single private dwelling house on a particular parcel of land. The applicants sought to build a second dwelling on the land, which the respondents, owners of neighbouring properties, argued would breach the covenant.

The central legal issues before the Court were: (1) whether the restrictive covenant was enforceable against the applicants, and (2) if enforceable, what was the proper interpretation and scope of the covenant, particularly in relation to the proposed construction of a second dwelling. The Court was required to determine whether the covenant, as registered, effectively prevented the subdivision of the land and the erection of more than one dwelling.

The Court reasoned that the covenant, by its plain language, restricted the land to a single private dwelling house. It held that the covenant was not merely a personal one but ran with the land and was therefore enforceable against subsequent owners. The Court applied the general principles of statutory interpretation to the wording of the covenant, finding that the prohibition on building "any building other than a single private dwelling house" clearly encompassed the erection of a second dwelling, irrespective of whether it was intended to be a separate residence. The Court rejected arguments that the covenant should be interpreted in a manner that permitted subdivision or the erection of multiple dwellings, finding no ambiguity in its terms.

The Court dismissed the applicants' appeal, upholding the primary judge's finding that the restrictive covenant was valid and enforceable and that the proposed construction of a second dwelling would breach its terms.

Orders