Pollard v Registrar of Titles

Pollard, the plaintiff, sought to enforce a restrictive covenant over the defendant's land. The covenant, which pertained to the construction of a single dwelling and the use of masonry building materials, was intended to benefit Pollard's property. The Supreme Court of Victoria was tasked with determining the enforceability of the covenant, particularly in light of its lack of specific reference to the benefitted land and the absence of extrinsic evidence to establish its applicability.

The central legal issue revolved around whether the covenant was annexed to the benefitted land and enforceable under the Property Law Act 1958 (Vic). The court examined the language of the covenant, noting the absence of words of annexation and any explicit reference to the identity of the benefitted land. The court also considered whether the covenant could be construed as a personal benefit to the covenantor rather than a benefit to the land. Additionally, the court addressed whether extrinsic evidence could be introduced to identify the benefitted land.

The court concluded that the covenant was not enforceable as it did not meet the statutory requirements for annexation to the benefitted land under section 84(2) of the Property Law Act 1958 (Vic). The lack of words of annexation and the absence of extrinsic evidence precluded the identification of the benefitted land. Consequently, the covenant was deemed to confer only a personal benefit to the covenantor, Pollard, and was therefore unenforceable. The court highlighted that a statutory declaration would have been appropriate if the covenant was intended to be a benefit to the land. The court ruled in favor of the defendant, finding the covenant unenforceable.

The final orders of the court declared that the restrictive covenant in question was unenforceable and could not be enforced against the defendant's property. This decision underscored the importance of clear language in covenants to ensure their enforceability and the limitations on using extrinsic evidence to identify benefitted land under the statutory provisions.