Adrienne Ryan v Margaret Mary Sutherland (No 2) [2011] NSWSC 1579

The restriction as to user was properly construed as an easement rather than a restrictive covenant and would be valid as either an easement or restrictive covenant.

Parties: Plaintiff: Adrienne Ryan; Defendant: Margaret Mary Sutherland
Jurisdiction: Australia
Judgment Date: 14 December 2011
Procedural Posture: Equity Proceedings / Consequential Orders Following Judgment
Outcome: Declaration made as to validity of restriction; Amended Cross-Summons otherwise dismissed.
Legal Topics: Easements, Restrictive Covenants, Validity of Restrictions on Use of Land

Real Property Easements Restrictive Covenants Validity of Restrictions on Use of Land

Case Brief

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Parties

Adrienne Ryan

Plaintiff

Margaret Mary Sutherland

Defendant

Procedural Posture

Equity Proceedings / Consequential Orders Following Judgment

Legal Issues

1 Whether the restriction as to user created by the registered dealing is void or affects the plaintiff's land
2 Whether the restriction should be properly construed as an easement or restrictive covenant and its validity

Ratio Decidendi

The restriction as to user was properly construed as an easement rather than a restrictive covenant and would be valid as either an easement or restrictive covenant.

Court Disposition

Declaration made as to validity of restriction; Amended Cross-Summons otherwise dismissed.

Orders

Declare that the restriction as to user created by an instrument pursuant to s 88B of the Conveyancing Act 1919 (NSW) registered as DP 267185 is valid, effectual and enforceable according to its terms to benefit Lot 1 in DP 517200 and to burden Lot 2 in DP 517200.
The Amended Cross-Summons filed in these proceedings otherwise be dismissed.