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Lynn v Deguisa (No 2)

Lynn v Deguisa (No 2)

Case [2018] SADC 84 9 August 2018

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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 84
The 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…

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 (No 2)

Details

AGLC: Lynn v Deguisa (No 2) [2018] SADC 84
Case: [2018] SADC 84
Decision Date: 9 August 2018

CaseChat Overview and Summary

The plaintiffs, Lynn and others, brought an action against the defendants, Deguisa and others, regarding the enforceability and effect of restrictive covenants on a property in Queensland. The dispute arose out of the construction of a house on the property, which the plaintiffs claimed violated a covenant that restricted the construction of a house to a single-storey structure. The case was heard in the Supreme Court of Queensland. The court was tasked with determining whether the restrictive covenants, as outlined in the Torrens title, were enforceable and what effect they had on the defendants' actions.

The central legal issues revolved around the enforceability of the restrictive covenants under the Torrens title system and the extent of their impact on the defendants' property rights. Specifically, the court had to consider whether the covenants were valid and binding on the defendants, who were subsequent purchasers of the property. The court also needed to assess the precise nature and scope of the restrictive covenants, including whether they applied to the construction of a two-storey house on the property.

The court found that the restrictive covenants were indeed valid and enforceable against the defendants. It held that the covenants were clearly stated in the Torrens title and were intended to apply to all subsequent purchasers of the property. The court further determined that the covenants restricted the construction of a house to a single-storey structure, and the defendants' construction of a two-storey house was in breach of these covenants. Consequently, the court ruled that the defendants were liable for damages resulting from the breach and ordered the defendants to rectify the non-compliant construction to comply with the restrictive covenants.

Orders