Legal Research
Cases
Midland Brick Company Pty Ltd v Welsh

Midland Brick Company Pty Ltd v Welsh

Link copied

Case Copied 27 June 2006 80 min read

Contents

On this page

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: MIDLAND BRICK COMPANY PTY LTD -v- WELSH & ANOR [2006] WASC 122

CORAM: HASLUCK J

HEARD: 22, 23, 28 & 29 MARCH 2006

DELIVERED : 27 JUNE 2006

FILE NO/S: CIV 2605 of 2002

BETWEEN: MIDLAND BRICK COMPANY PTY LTD (ACN 008 674 224)
Plaintiff
AND
MARIAN CONCEPTA WELSH
First Defendant
REGISTRAR OF TITLES
Second Defendant

Catchwords:

Property law - Restrictive covenant - Negative covenants included in contract of sale and subsequent deed - Covenants by purchaser not to subdivide the land being acquired and not to complain about emissions from brickworks on land retained by the vendor - Intention of parties as to benefit and burden not set out expressly - Issue as to whether covenants touch and concern land retained by vendor - Whether burden of covenants runs with the land the subject of the sale - Principles of interpretation - Parol evidence rule - Application of s 47 and s 48 of Property Law Act 1969 (WA)

Adequacy of caveat lodged to protect vendor's interest in the land - Whether restrictive covenant creates a caveatable interest in the land burdened by the covenant - Whether covenant not to subdivide can justify lodgment of an absolute caveat - Description of interest held to be inadequate

Legislation:

Law of Property Act (1925) (UK), s 11(1), s 78, s 79
Property Law Act 1969 (WA), s 47, s 48, s 49

Transfer of Land Act (1893) (WA), s 53, S 68, s 137, s 138, s 138C, s 138D(1)(e), s 139

Result:

Judgment for plaintiff

Category: A

Representation:

Counsel:

Plaintiff:     Mr S G Leslie
First Defendant             :     Ms W F Buckley
Second Defendant         :     No appearance

Solicitors:

Plaintiff:     Wilson & Atkinson
First Defendant             :     Anderson Kershaw
Second Defendant         :     No appearance

Case(s) referred to in judgment(s):

Abigail v Lapin (1934) 51 CLR 58
Acorn Consolidated Pty Ltd v Hawkslade Investments Pty Ltd (1999) 21 WAR 425
Adamson v Hayes (1973) 130 CLR 276
Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99
Baramon Sales Pty Ltd v Goodman Fielder Mills Ltd [2001] FCA 1672
Beswick v Beswick (1968) AC 58
Binningup Nominees Pty Ltd v Brogue Tableau Pty Ltd [2004] WASC 14
Blacks Ltd v Rix [1962] SASR 161
BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266
Butler v Fairclough (1917) 23 CLR 78
Chambers v Randall [1923] 1 Ch 149
Clem Smith Nominees Pty Ltd v Farrelly & Farrelly (1978) 20 SASR 227
Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337
Coles KMA Ltd v Sword Nominees Pty Ltd & Ors (1986) 44 SASR 120
Commissioner of Taxation of the Commonwealth of Australia v Sara Lee Household & Body Care (Australia) Pty Ltd (2000) 201 CLR 520
Commonwealth v Verwayen (1990) 170 CLR 394
Crampton v French (1995) V ConvR 54‑529
Cruz v Osborne [1999] WASC 8
Dalgety Wine Estates Pty Ltd…

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.

Keep reading for free

Create a free CaseChat account to read Midland Brick Company Pty Ltd v Welsh and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2006] WASC 122
Decision Date: 27 JUNE 2006

CaseChat Overview and Summary

Midland Brick Company Pty Ltd v Welsh is a property law case that addresses the enforceability of restrictive covenants in a contract of sale and a subsequent deed. The dispute involved a covenant by the purchaser not to subdivide the land being acquired and a covenant not to complain about emissions from brickworks on land retained by the vendor. The central issue was whether these covenants touch and concern the land retained by the vendor, thus creating a burden that runs with the land. Additionally, the case examined the adequacy of the caveat lodged by the vendor to protect their interest in the land burdened by the covenant, particularly whether the covenant not to subdivide justified the lodgment of an absolute caveat and whether the description of the interest held was adequate.

The court was required to interpret the intention of the parties concerning the benefit and burden of the covenants. It had to determine whether the covenants were intended to benefit the land retained by the vendor and burden the land sold. The court also considered the application of the parol evidence rule and sections 47 and 48 of the Property Law Act 1969 (WA). These sections relate to the transfer of land and the effect of contracts and other instruments on the land. The court had to decide whether the restrictive covenant creates a caveatable interest in the land burdened by the covenant and whether the covenant not to subdivide can justify lodgment of an absolute caveat.

The court found that the restrictive covenants were intended to benefit the land retained by the vendor and burden the land sold. It held that the covenants touch and concern the land retained by the vendor, thus creating a burden that runs with the land. The court also determined that the covenant not to subdivide can justify the lodgment of an absolute caveat, but the description of the interest held was inadequate. Consequently, the covenant was not a caveatable interest, and the caveat was insufficient to protect the vendor's interest. The court's decision underscores the importance of clearly articulating the benefit and burden of restrictive covenants in property transactions and the necessity of accurately describing interests in caveats to ensure their effectiveness.

Orders