Forestview Nominees Pty Ltd & Anor v Perpetual Trustees W.A. Ltd & Ors [1995] FCA 922

Forestview Nominees Pty Ltd & Anor v Perpetual Trustees W.A. Ltd & Ors [1995] FCA 922

The restrictive covenant is binding in equity upon Silkchime as successor in title with notice, enforceable by Perpetual as original covenantee, and annexed to the Shopping Centre Land; lessees of the dominant land are expressly excluded from the benefit, but lessees and occupiers of the burdened land are bound unless expressly excluded. The covenant touches and concerns the dominant land by protecting its value and amenity as land.

Parties
First Applicant: Forestview Nominees Pty Ltd; Second Applicant: Silkchime Pty Ltd; Respondent/cross Claimant: Perpetual Trustees W.A. Ltd; Cross Respondent: The National Mutual Life Association of Australasia Ltd
Jurisdiction
Australia
Judgment Date
16 November 1995
Procedural Posture
General Division – Equity/declaratory Relief / Judgment on Construction/enforceability of Restrictive Covenant Prior to Hearing on Trade Practices Act and Public Policy Grounds
Outcome
Restrictive covenant enforceable against Silkchime; benefit annexed to dominant land; burden attaches to burdened land; lessees and occupiers of burdened land are bound; lessees of dominant land excluded from benefit.
Legal Topics
Restrictive Covenants, Land Registration, Annexation, Touch and Concern, Enforceability, Successors in Title, Leasehold Interests
Equity Property Law Restrictive Covenants Land Registration Annexation Touch and Concern Enforceability Successors in Title +1 more

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Parties

Forestview Nominees Pty Ltd

First Applicant

Silkchime Pty Ltd

Second Applicant

Perpetual Trustees W.A. Ltd

Respondent/cross Claimant

The National Mutual Life Association of Australasia Ltd

Cross Respondent

Procedural Posture

General Division – Equity/declaratory Relief / Judgment on Construction/enforceability of Restrictive Covenant Prior to Hearing on Trade Practices Act and Public Policy Grounds

Legal Issues

  1. 1 Whether the restrictive covenant binds Silkchime as successor in title
  2. 2 Whether Perpetual as original covenantee can enforce the covenant against Silkchime
  3. 3 Whether the covenant is annexed to the dominant land and/or burdened land

Ratio Decidendi

The restrictive covenant is binding in equity upon Silkchime as successor in title with notice, enforceable by Perpetual as original covenantee, and annexed to the Shopping Centre Land; lessees of the dominant land are expressly excluded from the benefit, but lessees and occupiers of the burdened land are bound unless expressly excluded. The covenant touches and concerns the dominant land by protecting its value and amenity as land.

Court Disposition

Restrictive covenant enforceable against Silkchime; benefit annexed to dominant land; burden attaches to burdened land; lessees and occupiers of burdened land are bound; lessees of dominant land excluded from benefit.

Orders

  • Parties to confer and submit agreed minute of orders or separate proposed orders and submissions within 14 days.
  • No formal orders made pending further submissions.