Kaysu Holdings (No 2) Pty Ltd v Davis and Ors

Kaysu Holdings (No 2) Pty Ltd appealed to the New South Wales Court of Appeal against a decision of the Supreme Court of New South Wales. The dispute concerned the interpretation and enforceability of a deed of covenant and indemnity entered into between the appellant and the respondents.

The primary legal issue before the Court of Appeal was whether the respondents, as successors in title to the original covenantee, were entitled to enforce the deed of covenant and indemnity against the appellant, the successor in title to the original covenantor. This involved determining whether the covenant "ran with the land" in equity, despite not being a registrable interest under the *Real Property Act 1900* (NSW).

The Court of Appeal, applying established principles of equity, found that the covenant created an equitable interest that bound successors in title who had notice of it. The court reasoned that the covenant was intended to benefit the land and burden the adjoining land, and that the respondents, having acquired the land with knowledge of the covenant, were bound by its terms. The court affirmed that equity would enforce such covenants to prevent unconscionable conduct, even where the formal requirements for a legal covenant were not met.

The appeal was dismissed, with the Court of Appeal upholding the Supreme Court's decision that the respondents were entitled to enforce the deed of covenant and indemnity.