Re Ferraro

The case of Re Ferraro involved an application for a declaration that certain land was not affected by any purported restriction in a covenant. The matter was heard in the Supreme Court of Victoria. The applicant, in this case, sought to remove a restrictive covenant that had been imposed on the property, arguing that it did not apply to the specific land in question. The respondent, who was the original covenantee, opposed the application.

The central legal issue was whether the restrictive covenant in question imposed any binding restrictions on the applicant's land. This involved determining whether the benefit of the covenant was annexed to the respondent's land and, therefore, whether the covenant was enforceable against the applicant. The court had to decide whether the covenant was intended to benefit specific land or if it was a personal covenant that did not bind subsequent landowners.

The court found that the covenant did not specify any benefited land, making its benefit personal to the transferors. The judge followed the reasoning in Beman Pty Ltd v Boroondara City Council, where it was held that the use of the phrase "and shall run with the land" did not necessarily indicate that the covenant was intended to bind future landowners. Given that the benefiting land was not ascertainable from the register of titles, the court deemed it appropriate to proceed with the application ex parte. Consequently, the court made a declaration that the applicant's land was not affected by the covenant. This decision was in line with the principles outlined in the Property Law Act 1958 (Vic), section 84(2), and the cases of Beman Pty Ltd v Boroondara City Council and Re Hunt.