Forestview Nominees Pty Ltd v Perpetual Trustees WA Ltd

- Introduction
Forestview Nominees Pty Ltd and Silkchime Pty Ltd (appellants) appeal against a decision of Carr J which held that a restrictive covenant imposed by National Mutual Life Association of Australia Limited (NML) on land adjoining the Warwick Grove Shopping Centre (covenantor) was enforceable against them. The covenant was made in favour of Perpetual Trustees WA Limited (respondent) who purchased the shopping centre land. The covenant prevented the use of the remaining land for retail sales, market stalls or showrooms. The appellants are successive purchasers of the remaining land and argue that the covenant is not enforceable against them. They contend that the covenant is not a restrictive covenant within the meaning of the equitable doctrine in Tulk v Moxhay, as it does not touch and concern the shopping centre land, and is therefore not enforceable against them. The appellants also contend that the covenant was not intended to bind successors in title to NML and that the method of discharging the covenant is inconsistent with the burden running with the land. The Federal Court of Australia dismissed the appeal and held that the covenant was enforceable against the appellants.

- Legal issues
The legal issues in this case are whether the restrictive covenant is enforceable against the appellants and whether the covenant was intended to bind successors in title to NML. The court also considered the method of discharging the covenant and whether it was consistent with the burden running with the land.

- Court's reasoning and outcome
The court held that the covenant was enforceable against the appellants. The court found that the covenant touched and concerned the shopping centre land and was therefore enforceable against the appellants as successors in title of the respondent. The court rejected the appellants' argument that the covenant did not touch and concern the shopping centre land because it excluded future tenants from its benefit. The court held that the covenant was intended to benefit the shopping centre land and was enforceable against the appellants. The court also found that the covenant was intended to bind successors in title to NML and that the method of discharging the covenant was consistent with the burden running with the land.

- Final orders
The appeal was dismissed and the appellants were ordered to pay the respondent's costs of the appeal.