Higgins v ACT (No 3)

Case [2025] ACTSC 336


SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Higgins v ACT (No 3)

Citation: 

[2025] ACTSC 336

Hearing Date: 

20 February 2025

Decision Date: 

1 August 2025

Before:

McWilliam J

Decision: 

Declaratory relief granted in respect of the obligation of the Territory, its assigns and agents to give effect to a restrictive covenant confining the use of specified land to purposes of or ancillary to a golf course, and such other purposes as presently permitted by the Crown lease registered in Volume 2157 Folio 38, with such relief benefiting the plaintiff’s land.  

Catchwords: 

EQUITY – DECLARATORY RELIEF – appropriate form of orders to give effect to equitable scheme of development – whether inappropriate to make declarations to quell potential future controversies

Legislation Cited: 

Australian Capital Territory (Planning and Land Management) Act 1988 (Cth) ss 28, 29(1)(b)

Chancery Procedure Act 1852 (UK) s 50

Civil Proceedings Act 2011 (Qld) s 10

Court Procedures Act 2004 (ACT)

Court Procedures Rules 2006 (ACT) r 2900

Federal Court of Australia Act 1976 (Cth) s 21

Planning Act 2023 (ACT)

Planning and Development Act 2007 (ACT)

Rules of the Supreme Court 1883 (UK) ord 25 r 5

Supreme Court Act 1933 (ACT) ss 20, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 34B

Supreme Court Act 1935 (SA) s 31

Supreme Court Act 1935 (WA) s 25(6)

Supreme Court Act 1970 (NSW) s 75

Supreme Court Act 1979 (NT) s 18

Supreme Court Act 1986 (Vic) s 36

Supreme Court Act 1995 (Qld) (repealed) s 128

Supreme Court of Judicature Act 1873 (36 & 37 Vic c 66) (UK)

Supreme Court Rules 1937 (ACT)

Cases Cited: 

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564

Alati v Kruger (1955) 94 CLR 216

Australasian Oil Exploration Ltd v Lachberg (1958) 101 CLR 119

Australian Consumer and Competition Commission v MSY Technology [2012] FCAFC 56; 201 FCR 378

Bass v Permanent Trustee Co Ltd [1999] HCA 9; 198 CLR 334

Bass v Permanent Trustee Co Ltd [1999] HCA 9; 198 CLR 334

BMI Ltd v Federated Clerks Union of Australia (1983) 51 ALR 401

Burow v The Queen [2015] ACTCA 61

CGU Insurance Limited v Blakeley [2016] HCA 2; 259 CLR 339

DJL v Central Authority [2000] HCA 17; 201 CLR 226

Edwards v Santos Limited [2011] HCA 8; 242 CLR 421

Egan v Willis [1998] HCA 71; 195 CLR 424

Forster v Jododex Australia Pty Ltd  (1972) 127 CLR 421

Grassby v The Queen (1989) 168 CLR 1

­­­­­­­­­­­­­­Higgins v ACT (No 2) [2024] ACTSC 400

Higgins v Australian Capital Territory [2020] ACTCA 56

Hobart International Airport Pty Ltd v Clarence City Council [2022] HCA 5; 276 CLR 51

John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465

John Fairfax & Sons Pty Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465

Kunstler v Kunstler [1969] 1 WLR 1506

Macguire v Makaronis (1997) 188…

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AGLC
Higgins v ACT (No 3) [2025] ACTSC 336
Case
[2025] ACTSC 336
Decision Date

CaseChat Overview and Summary

The case of Higgins v ACT (No 3) arose in the Federal Court of Australia, where the plaintiff sought declaratory relief concerning the use of certain land owned by the defendant, the Australian Capital Territory (ACT). The dispute centred around the interpretation and enforcement of a restrictive covenant related to the use of land, which was intended to ensure it was used for a golf course or for purposes ancillary to such a use. The plaintiff argued that the ACT had failed to enforce the covenant, potentially allowing the land to be used for purposes that were inconsistent with the covenant.

The legal issues before the court involved determining the appropriate form of orders to give effect to the equitable scheme of development established by the restrictive covenant. The court was tasked with deciding whether it was appropriate to make declarations that would quell potential future controversies regarding the use of the land. This involved an examination of the covenant's terms and the extent to which the court should intervene to enforce the covenant and protect the interests of the plaintiff's land.

In delivering its judgment, the court found that the restrictive covenant clearly outlined the permissible uses of the land and that the ACT had an obligation to enforce this covenant. The court held that the declarations sought by the plaintiff were appropriate as they aimed to give effect to the equitable scheme established by the covenant. The court granted the requested declaratory relief, ensuring that the ACT, its assigns, and agents were bound by the covenant and could only use the specified land for purposes consistent with the golf course or other permitted uses under the Crown lease. The relief was tailored to benefit the plaintiff’s land, providing a clear and enforceable statement of the rights and obligations under the covenant.

The final orders of the court were that declaratory relief was granted in respect of the obligation of the Territory, its assigns and agents to give effect to the restrictive covenant, ensuring that the specified land could only be used for golf course purposes or other permitted uses as outlined in the Crown lease. This decision provided clarity and protection for the plaintiff’s land, ensuring compliance with the covenant and preventing any future controversies regarding the use of the land.

Orders

Orders of the court

Declaratory relief granted in respect of the obligation of the Territory, its assigns and agents to give effect to a restrictive covenant confining the use of specified land to purposes of or ancillary to a golf course, and such other purposes as presently permitted by the Crown lease registered in Volume 2157 Folio 38, with such relief benefiting the plaintiff’s land.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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