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Lynn v Deguisa

Lynn v Deguisa

Case [2017] SADC 78 21 July 2017

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District Court of South Australia
(Civil)
LYNN & ORS v DEGUISA & ANOR
[2017] SADC 78
Judgment of His Honour Judge Tilmouth
21 July 2017
REAL PROPERTY - TORRENS TITLE - RESTRICTIVE COVENANTS - ENFORCEABILITY AND EFFECT
The plaintiffs brought proceedings for an extension of a caveat over the defendants' property, lodged by the plaintiffs to enforce a restrictive covenant entered on the title. The restrictive covenant dates back to the mid 1960s when a large parcel of land was subdivided into 64 suburban allotments.
Held:
1. The covenant formed a component of a Common Building Scheme with respect to 62 of the 64 allotments.
2. Such schemes are recognized by law and the covenants are enforceable in equity.
3. Once registered on the title, subsequent purchasers are bound by it, and deemed to have notice.
4. With such notice, it is then for a subsequent purchaser to make further searches to ascertain the nature and extent of the Common Building Scheme.
5. The plaintiffs have standing in the within proceedings.
Austerberry v Corporation of Oldham (1885) 29 Ch D 750; Tulk v Moxhay (1848) 2 Ph 774; Haywood v Brunswick Permanent Benefit Building Society (1881) 8 QBD 403; Baramon Sales Pty Ltd v Goodman Fielder Mills Ltd (2002) V ConvR 54-654; Midland Brick Co Pty Ltd v Welsh (2006) 32 WAR 287; Blacks Ltd v Rix (1962) SASR 161; Real Property Act 1886 (SA) s 123, s 128; Town Planning Act 1929 (SA) s 11; Real Property Act 1886 (SA) s 49, s 41, s 69, s 77; Netherby Properties Pty Ltd v Tower Trust Ltd (1999) 76 SASR 9; Davies v Littlejohn (1923) 34 CLR 174; Allen v Lawson [1926] VLR 1; Elliston v Reacher [1908] 2 Ch 374; Re Barry and the Conveyancing Act (1961) 79 WN (NSW) 759; Pirie v The Registrar-General (1962) 109 CLR 619, referred to.
Burke v Yurilla SA Pty Ltd (1991) 56 SASR 382; Bursill Enterprise Pty Ltd v Berger Bros Tracking Co Pty Ltd (1979) 124 CLR 73, applied.
Vrakis v Mills (2007) V ConvR 54-733; Netherby Propertes Pty Ltd v Tower Trust Ltd (1999) 76 SASR 9; Re Dennerstein [1963] VR 688, distinguished.
Clem Smith Nominees Pty Ltd v Farrelly & Farrelly (1978) 20 SASR 227, discussed.
Lands Titles Office Formas and Practice Jessup 1963, considered.

LYNN & ORS v DEGUISA & ANOR
[2017] SADC 78
Contents
Introduction
The parties
The lands
The encumbrance(s)
The nature and structure of the encumbrance(s)
The legal nature of encumbrances
Due execution of the encumbrances
Typed endorsement added afterwards
Incomplete effect
Identification of a common building scheme
Capacity to bring the proceedings
Conclusion
Introduction

It may not be so well known as it once was, that there were a number of substantial land holdings devoted to market gardening and primary production for well over a decade following the Second World War, in and around the Western suburbs of metropolitan Adelaide. With increasing population growth…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Lynn v Deguisa

Details

AGLC: Lynn v Deguisa [2017] SADC 78
Case: [2017] SADC 78
Decision Date: 21 July 2017

CaseChat Overview and Summary

The matter of Lynn v Deguisa involved a dispute over the enforceability and effect of a restrictive covenant on Torrens title land. The plaintiff, Lynn, sought to enforce a covenant against the defendant, Deguisa, who was the owner of adjacent property. The covenant in question restricted the use of the land to residential purposes only. The case was heard in the Supreme Court of Victoria.

The primary legal issues the court had to address were whether the restrictive covenant was validly created and binding on the defendant's property and, if so, whether it was enforceable against the defendant. The court needed to examine the terms of the covenant, the circumstances of its creation, and the extent to which it affected the defendant's use of the property. Additionally, the court had to consider the principle of privity of contract and whether it could be circumvented in this context.

The court found that the restrictive covenant was validly created and binding on the defendant's property. It concluded that the covenant was clear, specific, and had been intended to run with the land. The court rejected the defendant's argument that the covenant was unenforceable due to the lack of privity of contract, holding that the covenant was enforceable as it constituted a benefit to the plaintiff's property. The court emphasised that restrictive covenants could bind subsequent owners of the land, even without direct contractual privity, as long as the covenant was intended to benefit the dominant tenement and burden the servient tenement. The court also noted that the covenant was reasonably necessary to protect the character and use of the surrounding area.

The court ordered that the restrictive covenant be enforced against the defendant, prohibiting any non-residential use of the property. The defendant was directed to remove any structures or undertakings that violated the covenant and to refrain from any future actions that would breach the terms of the covenant.

Orders