Deguisa v LynnCitation:[2020] HCA 39Before:Kiefel CJ, Gageler, Keane, Gordon, Edelman JJDate:04 Nov 2020Case Number:A4/2020Read more

The court held that the restrictive covenants in the memorandum of encumbrance were not sufficiently notified on the certificate of title in accordance with section 69 of the Real Property Act 1886 (SA), and therefore were not enforceable against the appellants as registered proprietors.

Parties: Registered Proprietors: Appellants; Objectors/beneficiaries of Restrictive Covenant: Respondents
Jurisdiction: Australia
Judgment Date: 04 November 2020
Procedural Posture: Appeal / Judgment
Outcome: Appeal allowed
Legal Topics: Torrens System, Indefeasibility of Title, Restrictive Covenants, Notification of Encumbrances

Real Property Law Torrens System Indefeasibility of Title Restrictive Covenants Notification of Encumbrances

Case Brief

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Parties

Appellants

Registered Proprietors

Respondents

Objectors/beneficiaries of Restrictive Covenant

Procedural Posture

Appeal / Judgment

Legal Issues

1 Whether the appellants were notified of restrictive covenants in the memorandum of encumbrance in accordance with section 69 of the Real Property Act 1886 (SA)
2 Whether the restrictive covenant prohibiting multiple dwellings was enforceable against the appellants as registered proprietors

Ratio Decidendi

Court Disposition

Appeal allowed

Orders

Restrictive covenants in the memorandum of encumbrance are not enforceable against the appellants
Appellants permitted to proceed with subdivision and construction of two townhouses