Pollak v Milder and Ors.

In the matter of Pollak v Milder and Ors., the dispute revolved around the interpretation and effect of a restrictive covenant that had been mistakenly created in 1956 under the Torrens system in New South Wales. The plaintiff sought to enforce the covenant against the defendants, who owned the neighbouring property, arguing that the covenant should confer a benefit upon their land. However, the covenant had inadvertently benefited a different piece of land located at Lambton, NSW, rather than the intended neighbouring land in Bellevue Hill. The plaintiff, who owned the burdened land, sought to extinguish the covenant, but before the case could be resolved, the notification on his certificate of title was cancelled with the consent of the owner of the land at Lambton.

The central legal issues that the court had to address were whether the neighbouring defendants could be granted rectification of the register to show their land as the one benefitting from the covenant, and whether they had standing to seek such rectification. The court also had to consider the statutory provisions under section 42 of the Real Property Act and section 88(1) of the Conveyancing Act 1919, which require clarity in the identification of both the benefitted and burdened land in any instrument creating a restrictive covenant. The court needed to determine whether these statutory requirements were met in the present case.

The court found that the defendants did not have the necessary standing to seek rectification as they had no direct relationship with the plaintiff and no equity to support their claim. Additionally, the court held that the statutory requirements were not satisfied because the instrument creating the covenant did not clearly indicate the land that was intended to benefit from the covenant. The court emphasised that for rectification to be available, there must be a clear error in the register that can be traced back to a mutual mistake or some other equitable basis, neither of which was present in this case. As a result, the court dismissed the defendants' application for rectification and any claim to the benefit of the restrictive covenant. The court did not need to address the issue of extinguishment as the covenant remained in effect for the intended land at Lambton, NSW.