HYNE & KINNEAR

In the Supreme Court of Queensland, Neville J considered a dispute between Hyne and Kinnear. The case concerned the interpretation and enforceability of a deed of covenant, specifically whether it created a personal covenant or a covenant that ran with the land. The central issue was whether the defendant, as a successor in title to the original covenantor, was bound by the obligations undertaken in the deed.

The court was required to determine whether the covenant contained in the deed was intended to be personal between the original parties or if it was intended to bind future owners of the land. This involved an analysis of the language used in the deed and the surrounding circumstances to ascertain the intention of the parties at the time the deed was executed. The court also had to consider the principles of equity regarding restrictive covenants and their enforceability against successors in title.

Neville J reasoned that the deed, by its express terms and the context in which it was made, indicated an intention for the covenant to be personal and not to run with the land. His Honour applied the principle that covenants will not be presumed to run with the land unless there is a clear intention to that effect, and that the burden of a covenant will generally not pass to a successor in title at common law. In this instance, the covenant was found to be a personal obligation of the original covenantor, and therefore, the defendant, as a successor in title, was not bound by it.