Dyason v Butterworth

In *Dyason v Butterworth*, the Supreme Court of Victoria was asked to determine a dispute between the plaintiff, Dyason, and the defendant, Butterworth. The core of the disagreement concerned the interpretation and enforceability of a restrictive covenant contained within a transfer of land. Dyason sought to enforce this covenant against Butterworth, who had acquired the land subject to the covenant.

The central legal issue before the Court was whether the restrictive covenant, which purported to prevent the erection of any building other than a single private dwelling house, was enforceable by Dyason against Butterworth. This required the Court to consider the principles of enforceability of restrictive covenants, particularly in circumstances where the covenant might be considered to run with the land and bind subsequent purchasers. The Court had to assess whether the covenant satisfied the requirements for such enforceability, including whether it was intended to benefit the land retained by the original covenantee and whether it touched and concerned the land.

Judge Driver reasoned that for a restrictive covenant to be enforceable against a successor in title, it must satisfy certain conditions. These include that the covenant must be negative in nature, that it must be intended to benefit the land retained by the covenantee, and that it must "touch and concern" the land. The Court found that the covenant in question was indeed negative, as it imposed a restriction rather than an obligation to do something. Furthermore, the Court was satisfied that the covenant was intended to benefit the land retained by the original vendor and that it touched and concerned the land by affecting its use and enjoyment. Consequently, the covenant was held to be enforceable against Butterworth.