Jeray v Blue Mountains City Council & Ors [2011] HCATrans 36

Jeray (the applicant) sought special leave to appeal to the High Court of Australia from a decision of the New South Wales Court of Appeal. The proceedings concerned a dispute over the construction and interpretation of a covenant affecting land owned by the applicant, which had been imposed by the Blue Mountains City Council (the first respondent) and subsequently transferred to the second respondent. The applicant sought to have the covenant removed or modified.

The primary legal issue before the High Court was whether the Court of Appeal had erred in its interpretation of section 89(1) of the Conveyancing Act 1919 (NSW), which provides for the modification or extinguishment of restrictive covenants. Specifically, the applicant argued that the Court of Appeal had misconstrued the meaning of "impediment" and "practical benefit" as contemplated by the section, and that the covenant did not confer any practical benefit of substantial value or utility on the beneficiaries.

Heydon J, in considering the application for special leave, focused on the applicant's contention that the Court of Appeal had applied an incorrect legal test in assessing the practical benefit of the covenant. His Honour noted that the applicant's argument essentially challenged the factual findings of the Court of Appeal regarding the utility and value of the covenant to the beneficiaries. Without special leave being granted, the High Court did not proceed to determine the substantive appeal.