Fox v Armytage

In *Fox v Armytage*, the High Court of Australia considered a dispute between the appellant, Fox, and the respondent, Armytage, concerning the interpretation and application of a restrictive covenant affecting land. The covenant, registered on the title, prohibited the erection of any building other than a single private dwelling house. Fox sought to construct a number of townhouses on the land, which Armytage argued would breach the covenant.

The central legal issue before the High Court was whether the proposed construction of multiple townhouses constituted the erection of "a single private dwelling house" within the meaning of the restrictive covenant. This required the Court to determine the proper construction of the covenant and whether it permitted subdivision and the erection of separate dwelling units, or if it was intended to preserve the character of the land as containing only one residential structure.

McHugh and Heydon JJ, in separate but concurring judgments, held that the covenant prohibited the erection of more than one dwelling house. Their Honours reasoned that the plain and ordinary meaning of "a single private dwelling house" referred to one building intended for occupation as a dwelling. They rejected the argument that the covenant could be interpreted to permit multiple dwelling houses provided they were all used as private residences. The Court applied the principle that restrictive covenants are to be construed strictly against the party seeking to enforce them, but that this did not permit an interpretation that departed from the clear language of the covenant.

The High Court dismissed the appeal, upholding the decision of the lower court. The orders made were that the appeal be dismissed with costs.