Lynn v Deguisa (No 2)
[2018] SADC 84
•9 August 2018
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
LYNN AND ORS v DEGUISA AND ANOR (No 2)
[2018] SADC 84
Judgment of His Honour Judge Tilmouth
9 August 2018
REAL PROPERTY - TORRENS TITLE - RESTRICTIVE COVENANTS - ENFORCEABILITY AND EFFECT
Application for declarations that a restrictive covenant prevents the erection of more than one dwelling house on an allotment within a building scheme, granted on the proper construction thereof.
Development Act 1993 (SA) reg 42, reg 324; Building Act 1923 (SA) s 4; Real Property Act 1988 (SA) s 191; Lynn & Ors v Deguisa & Anor [2017] SADC 78; Sutton v Shoppee (1963) 63 SR (NSW) 853; Re Martin's Application (1988) 57 P & CR 119; Re Cashmore's Application [1967] Tas SR 217; Re Louis and the Conveyancing Act [1971] 1 NSWLR 164; Tulk v Moxhay (1848) 2 PH 774; Baramon Sales Pty Ltd v Goodman Fielder Mills Ltd (2002) V ConvR 54-654; Burke v Yurilla SA Pty Ltd (1991) 56 SASR 382; Natraine Nominees Pty Ltd v Patton (2001) V ConvR 54-636; Post Investments Pty Ltd v Wilson (1990) 26 NSWLR 598; Federated Homes Ltd v Mill Lodge Properties Ltd [1980] 1 AllER 279; Clem Smith Nominees Pty Ltd v Farrelly (1978) 20 SASR 227; Newton Abbot Co-op Society Ltd v Williamson & Treadgold Ltd [1952] Ch 286; Re Marshall and Scott’s Contract [1938] VLR 98; Ferella v Otvosi (2005) 64 NSWLR 101; Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451; Australian Broadcasting Commission v Australasian Performing Rights Association Ltd (1973) 129 CLR 99; Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451; Southern Cross Assurance Co Ltd v Australian Provincial Assurance Association Ltd (1935) 53 CLR 618; Bohn v Miller Brothers Pty Ltd [1953] VLR 354; Langdale Proprietary Limited v Sollas [1959] VR 634; Re Arcade Hotel Pty Ltd [1962] VR 274; Re Barry and the Conveyancing Act [1962] NSWR 977; Re Ellison and the Conveyancing Act [1967] 87 WN (Pt 1) (NSW) 1; Ellison v O'Neill [1968] 2 NSWR 246; Gyarfas v Bray (1989) 4 BPR 97; Re Hammond [2015] VSC 608; Conlan v Benton [2017] VSC 244; Megarry & Wade, The Law of Real Property, 7th Edition Thompson; Westminster City Council v Duke of Westminster [1991] 4 All ER 138; Pirie v The Registrar-General (1962) 109 CLR 619, referred to.
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165, applied.
Phoenix Commercial Enterprises Pty Ltd v City of Canada Bay Council [2010] NSWCA 64, distinguished.
LYNN AND ORS v DEGUISA AND ANOR (No 2)
[2018] SADC 84The proceedings
These two consolidated actions return to the court with the plaintiffs’ action seeking declarations that a proposed building on the property of the defendants breaches a restrictive covenant.
In the first action the court upheld the restrictive covenant in aid of a common building scheme for the benefit of 52 of 54 lots in a mid-1960s sub-division on Henley Beach Road Fulham: Lynn & Ors v Deguisa & Anor.[1] A plan of the sub-division is contained in Annexure A of that judgment, in which the defendant’s land is ‘Lot 3’ and so described herein. There was no suggestion that the scheme was invalidated by the omission to incorporate all 54 allotments: Sutton v Shoppee.[2]
[1] [2017] SADC 78, [71].
[2] (1963) 63 SR (NSW) 853.
Underlying facts
A caveat registered by the plaintiffs over the subject property on 19 July 2016 to protect their interests in enforcing the covenant, remains in force until these proceedings are resolved. The second proceeding requires a close consideration of the meaning and breadth of the restrictive covenant and whether it permits the proposed development.
On 16 December 2015 the defendants applied to the City of West Torrens as the local Council for the area of Fulham, for development approval of the sub-division of Lot 3, now designated as Lot 77, 538 Henley Beach Road. Development approval was granted for the sub-division of the property into two equal parts on 12 April 2016, under reg 42 of the Regulations under the Development Act 1993 (SA).[3] There are mutual abutting rights of way to allow forward vehicular egress from the properties onto the busy thoroughfare of Henley Beach Road. Of course planning approval being merely permissive, does not of itself authorise breaches of a restrictive covenant: Re Martin’s Application.[4]
[3] Exhibit D8.
[4] (1988) 57 P & CR 119, 124.
On 3 November 2017 the defendants applied for development approval to build two attached residences on the property, one on each of the sub-divided allotments. The Council granted planning consent subject to conditions on 30 November 2017.[5] The plaintiffs contend that the erection of two dwelling houses on the sub-divided allotment infringes the restrictive covenant.
[5] Exhibit D9.
The encumbrance – express terms
A Memorandum of Encumbrance was registered and entered on the Title on 19 November 1965 as the conventional means of enforcing the restrictive covenant: Re Cashmore’s Application,[6] Re Louis and the Conveyancing Act.[7] The contentious aspects of the encumbrance are those contained in these clauses:[8]
[6] [1967] Tas SR 217.
[7] [1971] 1 NSWLR 164, 178.
[8] Exhibit P2.
… AND the Encumbrancer HEREBY COVENANTS with the said Keith Oliver Ayton and Betty Joan Fielder (in addition and without prejudice to the covenants on the part of the Encumbrancer and the powers rights and remedies of the said Keith Oliver Ayton and Betty Joan Fielder as Encumbrancees implied herein under and by virtue of the provisions of “The Real Property Act 1886-1963” and amendments thereof for the time being in force except insofar as the same are hereby expressly or impliedly negatived or modified) in manner following, that is to say:-
1. The Encumbrancer will pay to the said Keith Oliver Ayton and Betty Joan Fielder the said sum of 1/- if demanded on the 30th day of June next and on each succeeding 30th day of June.
2. That the Encumbrancer will not at any time erect or permit or suffer to be erected upon the said land or any part thereof any building or buildings other than
(a)a dwellinghouse for private residential purposes, and
(b)outbuilding or outbuildings suitable for use in conjunction with a dwellinghouse used for private residential purposes
AND FURTHER the Encumbrancer will not at any time erect or permit or suffer to be erected upon the said land or any part thereof any dwellinghouse
(a)with its external walls constructed of any material other than brick or stone or reinforced concrete or any combination thereof, or
(b)the internal area of which shall be less than 1200 square feet, or
(c)the value of which (excluding all outbuildings) shall be less than FOUR THOUSAND POUNDS (£4,000.0.0) and for the purposes of this subparagraph the value shall be deemed to be the actual cost of labour and materials alone in the erection of the same.
3. That the Encumbrancer will not at any time erect or permit or suffer to be erected upon the said land or any part thereof any block or blocks of flats home units or other multiple dwellings.
4. That the Encumbrancer will not use or permit or suffer the said land or any part thereof or any building thereon to be used for or in connection with any trade, business or industrial purpose.
5. That the Encumbrancer will not at any time make or permit or suffer to be made any additions to or alterations in any dwellinghouse or any other building or erection upon the said land which shall or may render such dwellinghouse or building or erection suitable or adaptable for any trade, business or industrial purpose or which shall or may have the effect of converting such dwellinghouse building or erection into a block of flats, home units or multiple dwellings.
Expressed in its simplest form, the plaintiffs’ contend this encumbrance prohibits the erection of multiple buildings of any kind, including dwelling houses. The defendants submit all that is prohibited are dwelling houses which do not conform with the description of ‘any block or blocks of flats, home units or other multiple dwellings’, or otherwise do not comply with the construction or minimum value requirements in clauses 2(a), (b) and (c).
The encumbrance – proper constitution
A number of preliminary observations may be made about the terms of this restrictive covenant. Firstly as expected, it is expressed in negative terms as required by the general law of equity: Tulk v Moxhay,[9] Baramon Sales Pty Ltd v Goodman Fielder Mills Ltd.[10] This particular covenant was upheld as enforceable to support the building scheme on the binding authority of the Full Court in Burke v Yurilla SA Pty Ltd.[11]
[9] (1848) 2 Ph 774.
[10] (2002) V ConvR 54-654.
[11] (1991) 56 SASR 382, Lynn & Ors v Deguisa & Anor [2017] SADC 78, [64]-[65].
Secondly, the covenant does not in so many words prohibit sub-division of the property. Thirdly the primary prohibition relates to the erection of ‘any building or buildings other than a dwellinghouse’ and ‘outbuildings suitable for use in conjunction of a dwellinghouse’. No question of outbuildings arise in this instance. The qualifications pertain to the type of dwelling house that may be erected, clause 3 being expressed in the singular case ‘any dwellinghouse’.
Cast in precisely the same terms ‘will not at any time erect … upon the said land or any part thereof’, the primary prohibition then successively pertains to ‘any block or blocks of flats, home units or other multiple dwellings’ in clause 3. The restriction further extends to prohibited uses in clause 4, again expressed in the singular case, and finally to additions or alterations to existing dwelling houses or buildings, in clause 5. Clauses 4 and 5 are not engaged on the facts of this case.
Fourthly, the common denominator is the prohibition of any structures of the specified or prescribed kind. Clause 3 speaks of ‘other’ multiple dwellings which rather premises a prohibition on all kinds of multiple dwellings, whereas clause 5 omits ‘other’, although clause 5 is otherwise expressed in the singular case, ‘dwellinghouse’ or ‘building’.
These preliminary reflections lead to the conclusion that what was intended was the prohibition of all buildings for residential purposes of any kind. It may well be that Flats, Home Units and multiple dwellings were added to avoid an interpretation of the words ‘dwellinghouse’ in their colloquial and ordinary meaning, which can include a building in which there is more than one residential abode, such as Units or Flats for example: Natraine Nominees Pty Ltd v Patton.[12]
[12] (2001) V ConvR 54-636, [21].
Legal principles
The conventional principles relating to the construction and interpretation of contracts apply to registerable instruments such as encumbrances containing restrictive covenants: Post Investments Pty Ltd v Wilson,[13] Federated Homes Ltd v Mill Lodge Properties Ltd,[14] Clem Smith Nominees Pty Ltd v Farrelly,[15] Newton Abbot Co-op Society Ltd v Williamson & Treadgold Ltd.[16] Such covenants are generally accorded their ordinary everyday meaning: Re Marshall and Scott’s Contract,[17] Ferella v Otvosi,[18] and are construed in context having regard to the purpose or objective of the restriction: Pacific Carriers Ltd v BNP Paribas.[19]
[13] (1990) 26 NSWLR 598, 5 BPR 97,330.
[14] [1980] 1 AllER 371, [1980] 1 WLR 594.
[15] (1978) 20 SASR 227.
[16] [1952] Ch 286, [1952] 1 AllER 279, [1952] 1 TLR 283.
[17] [1938] VLR 98, 99.
[18] (2005) 64 NSWLR 101, [15]-[17].
[19] (2004) 218 CLR 451, [22], 462.
It is a matter of first principle that when construing contracts, the rights and liabilities of the parties are to be determined objectively: Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd.[20] The court must consider the whole instrument harmoniously, so that where two constructions are open, the preferred construction is that which avoids consequences appearing to be ‘capricious, unreasonable, inconvenient or unjust’: Australian Broadcasting Commission v Australasian Performing Rights Association Ltd.[21] According to Pacific Carriers Ltd v BNP Paribas,[22] the process of construction requires consideration:
[20] (2004) 219 CLR 165, [35], [40].
[21] (1973) 129 CLR 99, 109.
[22] (2004) 218 CLR 451, [22].
… not only of the text of the documents, but also the surrounding circumstances known to [the contracting parties], and the purpose and object of the transaction.
These principles give way when a contrary intention is contained within the instrument under construction: Southern Cross Assurance Co Ltd v Australian Provincial Assurance Association Ltd.[23] An example of this occurs where words or phrases having specialised, technical meanings, or in law, are deliberately employed so that a presumption arises that the parties intended to employ them according to their technical meaning: Phoenix Commercial Enterprises Pty Ltd v City of Canada Bay Council.[24]
[23] (1935) 53 CLR 618, 636.
[24] [2010] NSWCA 64, [167] and the cases referred to therein.
At issue in Phoenix was whether the Council was in breach of clause 15(d) of a lease over two areas of land on which Phoenix erected large advertisements, by approving the erection of bus shelters thereon having advertising panels on their sides. The judge at first instance held the bus shelters were ‘general advertising structures’ and he rejected the notion that the lease should be construed by reference to any legislative instrument:[25]
[25] [2009] NSWSC 17, [63].
If the parties intended to pick up language in legislative instruments it could be expected that they would have defined the expression “advertising structure” or “general advertising structure” by express reference to such an instrument. In the absence of such a provision I do not think that the clause should be construed by reference to either sets of legislative provisions. However, if I am wrong in that, it would make more sense that the parties intended to adopt a definition of the exact phrase used, namely, “general advertising structure”, which was still in current use in the planning scheme ordinance for the council municipality, than a legislative definition of “advertising structure”, given that they chose the former language. The bus shelters would be general advertising structures within the meaning of the ordinance.
This conclusion was overturned on appeal in Phoenix Commercial Enterprises Pty Ltd v City of Canada Bay Council for the following reasons:[26]
[26] [2010] NSWCA 64, per Campbell JA, Spigelman CJ and Handley AJA.
[175] The leases in the present case were obviously drawn by lawyers, and effect a legal transaction. Thus, if they use an expression that is not an expression that is part of everyday English but that has a special meaning in the law, that in itself is a reason for a reasonable reader taking the view that, unless there are other factors, the expression is used in its legal sense. The court is able to know the meaning of technical legal terms without the calling of extrinsic evidence (Cross on Evidence, 8th Aust ed (2010) para [3075]), so taking such a meaning into account does infringe any limitations on the availability of extrinsic evidence.
[176] In particular, as a specific application of the general test about when surrounding circumstances can be used as an aid to construction, if a reasonable person with the relevant background knowledge would read some particular contractual provision in light of the provisions of a statutory context within which the contract is to operate, then that statutory context can be a legitimate aid to construction.
…
[179] “General advertising structure” is a technical legal term, which has a meaning in the precise field of discourse with which clause 15(d) deals. The factors that I mentioned at para [175] above provide a reason why a reasonable reader would, absent countervailing reasons, understand it as having that technical meaning.
It is quite evident this decision resulted from the conclusion that ‘general advertising structures’ was deliberately brought ‘into alignment with what the Council was authorised to approve’ under the Concord Planning Scheme Ordinance, s 5, because ‘general advertising structure was a ‘technical legal term, which has a meaning in the precise field of discourse with which clause 15(d) deals’.[27] Hence Spigelman CJ observed the expression ‘general advertising structure’ was incorporated in the lease ‘for the very purpose of bringing the restraint … into alignment with what the Council was authorised to approve’.[28] There is no evidence here that the intention or expectation of the parties was to incorporate words of fixed technical meaning in the subject encumbrance.
[27] Ibid [53]-[54], [179] and [245]-[246].
[28] Ibid, [54] and see Handley AJA at [245]-[246].
Construction of the restrictive covenant
Returning to the particular wording of the restrictive covenant, it is apparent that it was not drafted with any particular statutory or regulatory scheme in mind. If it was, one would expect the incorporation of express references to the provisions in mind. The references to ‘a dwelling house’ are consistently to the definite article or singular case, which necessarily excludes multiple dwelling houses. It was after all, the evident purpose of the entire covenant to restrict multiple buildings of the kind specified, used or adapted for dwelling purposes.
Far from ambiguity or uncertainty, the consistent use of the expression of ‘or any part thereof’ plainly premises the possibility of sub-division, and thereby serves the purpose of preserving intact the prohibition on building multiple dwellings of the proscribed kinds, so that those words are accordingly far from otiose.
It was moreover common conveyancing practice to incorporate into restrictive covenants expressions covering the whole and parts of a parcel of land, because of a considerable body of indecisive case law over whether a covenant to protect a parcel of land was properly construed as protecting that parcel of land as a whole, or each and every part of the parcel as well as the whole in the context building schemes: Bohn v Miller Brothers Pty Ltd,[29] Langdale Proprietary Limited v Sollas,[30] Re Arcade Hotel Pty Ltd,[31] Re Barry and the Conveyancing Act,[32] Re Ellison and the Conveyancing Act,[33] Ellison v O’Neill,[34] and Gyarfas v Bray.[35] Problems invariably arise in this area substantially because building schemes are notoriously ill-adapted to Torrens system land,[36] and because many clauses are ‘poorly drafted.[37]
[29] [1953] VLR 354, 357-358.
[30] [1959] VR 634, 639-641.
[31] [1962] VR 274, 277-279, 290-291.
[32] [1962] NSWR 977, 978-979.
[33] [1967] 87 WN (Pt 1) (NSW) 1, 2-4.
[34] [1968] 2 NSWR 246, 249, 252-253, 257-259.
[35] (1989) 4 BPR 97, 323, 9736, 9741.
[36] Bradbrook MacCullum, ‘Easements and Restrictive Covenants’, 3rd Ed 2011 Lexis Nexis Butterworths Australia, 13.85.
[37] Jessups Land Titles Office Forms and Practice’, 7th Edition, The Law Book Co Ltd, 145.6, p 33-122.
Countervailing reasons
It was suggested on behalf of the defendants that if it was intended to prevent the erection of more than one dwelling house, the covenant could so easily have read ‘dwelling house or dwelling houses’ or for example ‘any building save one dwelling house’: InRe Marshall and Scott’s Contract,[38] or ‘only one house’: Ex parte High Standard Constructions Ltd.[39] This very point was made by Bongiorno J in Tonks v Tonks:[40]
[38] [1938] VLR 98.
[39] (1928) 29 SR (NSW) 274.
[40] (2013) 11 VR 124, [17].
[17] … If the parties to the original covenant had wished to restrict the number of dwelling houses built on each of these lots they could have done so very simply and definitively by replacing the word “a” in the covenant with the word “one”, or by making some similar simple amendment. The true construction of the covenant is that it prohibits the placing of any building on the land unless that building is a dwelling house. Provided that any building constructed can be properly described as a dwelling house there would be no breach of the covenant. The covenant says nothing in my opinion, as to the number of dwelling houses which might be built. To import a restriction as to the number of houses which might be built on lot 3 into the covenant would extend its effect beyond the words used by the parties without any warrant for doing so.
The restrictive covenant in Tonks provided the registered owner:
… will not erect or cause or permit to be erected on the land hereby transferred or any part thereof any building other than a dwelling house.
This limited singular covenant is plainly different and less expansive than is the case here. Moreover, the question is as always, what is the proper construction of the subject covenant in its particular context. As pointed out in Re Hammond,[41] and again in Conlan v Benton,[42] the difficulty in such a simplistic approach is that it begs the question ‘whether a dwelling means one dwelling’ in the context of the particular covenant in a particular context.
[41] [2015] VSC 608, [19].
[42] [2017] VSC 244, [96].
Next it was argued there was a clear intention to import terms of strict legal meaning. It is true enough that a ‘dwelling house’ was defined in s 4 of the Building Act 1923 (SA) which remained in place at the time this covenant was entered on the Register, as meaning ‘a building used, or constructed or adapted to be used, wholly or principally for human habitation’. This however throws little if any light on the construction issue. It was also the case that a ‘Flat’ was defined in reg 324 of the Regulations under the Building Act as meaning:
… a suite of rooms which is wholly occupied or designed or intended or adapted to be occupied as a separate domicile …
Regulation 324 further defined a ‘multiple dwelling’ as meaning:
… a dwelling-house any part or parts of which are either rented, leased, let or hired out to be occupied, or adapted for occupation as the abode, residence or home of two or more families living independently of each other and in which some of the accommodation is used or is adapted to be used in common.
It is difficult to envisage that the words used in this encumbrance were intended to exclusively incorporate these restricted technical meanings to the exclusion of others, such as ‘any block or blocks of flats, home units …’. A dwelling house has a wide meaning in ordinary parlance: Downie v Lockwood.[43] The references to ‘home units’ and ‘any block or blocks of flats’ had no statutory or regulatory counterpart. These were very likely added in order to cover the field by excluding the prospect of Units or Flats and the like under the one roof. The use of ‘multiple dwellings’ in clauses 3 and 5 were likely directed to the same end.
[43] [1965] VR 257, 262.
In these circumstances there is no basis for applying – or any evidence to be gathered from the surrounding circumstances for inferring - the rather strained construction urged on behalf of the defendants that clause 2 permitted the erection of multiple dwelling houses, when all the remaining clauses clearly do the opposite with respect to all ‘other’ types of dwellings.
Nature of relief
In paragraph 22 of their prayer for relief filed in the second proceedings, the plaintiffs seek the following declaratory orders:
a. A declaration that the proposed building of two single story detached dwellings on the land as proposed by the Defendants is a breach of the Encumbrance;
b. An injunction restraining the Defendants whether by themselves, their servants, agents or Otherwise from building upon the land in accordance with planning approval;
c. An injunction to restrain the Defendants whether by themselves, their servants, agents or otherwise from building upon the entirety of the land more than one residential dwelling.
d. That the foregoing declarations be registered on the Certificate of Title to the land.
By their defence the defendants similarly seek declaratory relief, in obverse terms:
18.The Defendants deny that the Plaintiffs are entitled to any or all of the relief claimed at paragraph 22 of the Claim and the Defendants seek the following declarations and relief as the Defendants wish and intend to act on the Subdivision Consent and the Development Plan Consent:
a. A declaration that subdividing the land situated at 538 Henley Beach Road Fulham in accordance with the Subdivision Approval is not a breach of the restrictive covenants contained in the Encumbrance;
b. A declaration that the construction of two (2) detached dwellings on the allotments approved in the Subdivision Approval at the land situated at 538 Henley Beach Road Fulham is not a breach of the restrictive covenants contained in the Encumbrance;
By its very nature the enforcement of an encumbrance invokes equitable relief, in practice enforced by way of an injunction ‘appropriate to the negative covenant’: Megarry & Wade, The Law of Real Property, 7th Edition.[44] In light of the conclusions reached above, it is appropriate to make orders of the kind sought by the plaintiffs, however the parties should first be at liberty to speak to the precise terms before they are entered and of course on the question of costs.
[44] Thompson, para 32-051.
Miscellaneous issues
Discretionary relief?
It is understandable in the modern era of urban development and renewal, that the defendants desire to subdivide and build two properties on what is now a sub-divided allotment as they have done. In many respects it could be said that this building scheme envisaged in the mid-1960s was constructed in an environment having no expectation or foresight of the planning and development circumstances half a century later. It is now relatively commonplace for previously revered quarter acre blocks to be subdivided and built upon separately. On the other hand building schemes are recognised by the courts as serving the purposes of preserving aesthetic standards and value of the land encumbered.
The court has no inherent power to declare a covenant of this kind either obsolete or unenforceable: Westminster City Council v Duke of Westminster.[45] Such discretionary powers are conferred by statute in Australia in all jurisdictions, except South Australia. These provide for the power to override, discharge or modify restrictive covenants where those covenants inhibit the goal of urban consolidation are obsolete, or to reflect a change in character of the neighbourhood: Environmental Planning and Assessment Act 1979 (NSW) s 28, Planning and Environment Act 1987 (Vic) s 60, Conveyancing Act 1919 (NSW) s 89, Transfer of Land Act 1893 (WA) s 129C, Planning and Development Act 2005 (WA), s 69, Property Law Act 1974 (Qld) s 181, Conveyancing and Law of Property Act 1884 (Tas) s 84D. Such options are however the province of Parliament and not the preserve of the courts of this State to confront.
[45] [1991] 4 All ER 138, 142.
Locus standi
The issue of the plaintiffs’ standing to bring the application to extend the caveat was considered and resolved in the first action in their favour: Lynn & Ors v Deguisa & Anor.[46] It was tolerably clear that their capacity to bring and enforce the caveat was well grounded in their equitable interests in the land and consequent statutory rights of enforcement conferred by s 191 of the Real Property Act 1988 (SA). Mr Fielder’s capacity to bring these proceedings is not in doubt because of his ownership of an allotment in the same building scheme, burdened by precisely the same restrictive covenant.
[46] [2017] SADC 78, [66]-[69].
The capacity of the plaintiffs Ann Lynn and Christine Evans as mere executors of the estate of an original encumbrance or to remain as parties, is on the other hand a dubious one: Pirie v The Registrar-General.[47] The second proceedings were instituted to avoid the distinct prospect that their capacity to do any more than enforce the caveat was spent in terms of the jurisdiction conferred under s 9(1)(fa) of the Real Property Act, because the second declaratory proceedings clearly step outside ‘an action … to establish the validity of the claim on which the caveat is based’.
[47] (1962) 109 CLR 619, 628.
As counsel for the defendants did not press the point, it remains unnecessary to resolve it.
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