Forestview Nominees Pty Ltd v Perpetual Trustees WA Ltd

Forestview Nominees Pty Ltd and Silkchime Pty Ltd (the appellants) appealed to the High Court of Australia from a decision of the Full Court of the Federal Court of Australia. The Full Court had upheld a Federal Court judge's grant of declaratory relief confirming the enforceability of a restrictive covenant burdening land owned by the appellants. The appellants sought a declaration that this covenant was not effective and did not bind them as successors in title to the original burdened landowner. The respondent, Perpetual Trustees WA Ltd, contended that the proposed development of a retail shopping centre on the burdened land would contravene the terms of the restrictive covenant.

The High Court was required to determine whether the restrictive covenant was enforceable against the successors in title of the burdened land. Specifically, the court had to consider the intention of the parties to the original covenant and whether that intention was to exclude enforcement by a tenant of the benefited land, and if so, whether this was consistent with the equitable doctrine established in *Tulk v Moxhay*.

The High Court allowed the appeal in part. The court reasoned that while the restrictive covenant was generally enforceable, the specific terms of the covenant, when read in conjunction with the transfer document, indicated an intention to exclude enforcement by a tenant of the benefited land. This intention was found to be consistent with the principles underpinning *Tulk v Moxhay*, which allows for the enforcement of restrictive covenants in equity. The court varied the orders of the Full Court to set aside an earlier order that had dismissed the appeal entirely, thereby acknowledging the partial success of the appellants' argument regarding the exclusion of tenant enforcement. The court otherwise dismissed the appeal, meaning the restrictive covenant remained enforceable against the appellants, albeit with the noted qualification.