Probert v The Estate of the Late Amiel Colin Christie (No. 2)

The matter before the court involved the plaintiffs, Probert, who sought declaratory and injunctive relief against the third defendant, Christie, concerning alleged breaches of covenants recorded on the title to Christie's land. The plaintiffs' land adjoined land formerly vested in the second defendant, Christie, who held it on a testamentary trust for the third defendant, Christie, and now owned it. The plaintiffs were successors in title to the covenantee, while the second defendant, Christie, and the deceased, whose estate he represented, along with the third defendant, Christie, were successors in title to the covenantor. The primary legal issues revolved around the interpretation of the covenants, specifically whether they imposed a positive obligation or a restriction, and whether the plaintiffs' claim that the covenant was enforceable against the successors in title to the covenantor was so evidently unsound that it could not possibly succeed at trial.

The court examined the principles governing the construction of covenants and whether the covenant in question imposed a positive obligation or a restriction. It also considered whether the plaintiffs' contention regarding the enforceability of the covenant against the successors in title to the covenantor was so clearly untenable that it could not succeed at trial. The court concluded that the plaintiffs' claim that the covenant was enforceable against the successors in title to the covenantor was so evidently unsound that it could not possibly succeed at trial. Therefore, the court granted the third defendant's application for summary dismissal.

Additionally, the court addressed the issues of Anshun estoppel and abuse of process, given that the plaintiffs had initiated earlier proceedings against the second defendant, Christie, raising substantially the same issues. The plaintiffs sought leave to amend to introduce claims for additional relief and a cause of action in nuisance. The earlier proceedings had settled on terms that included discontinuance of those proceedings by consent. The court found that the third defendant, Christie, was privy in interest with the second defendant, Christie, in respect of the earlier proceedings. Consequently, the doctrines of Anshun estoppel and abuse of process precluded the plaintiffs from maintaining their claims and proposed claims in these proceedings. The court dismissed the plaintiffs' claims and ordered them to pay the third defendant's costs of the proceedings.