Forestview Nominees Pty Ltd & Anor v Perpetual Trustees WA Ltd [1996] FCA 1164

Forestview Nominees Pty Ltd & Anor v Perpetual Trustees WA Ltd [1996] FCA 1164

The restrictive covenant is enforceable against successors in title to the burdened land, including the appellants, regardless of the exclusion of tenants from its benefit; the covenant touches and concerns the benefited land, and there is no contrary intention expressed so as to prevent the burden from passing under s.48 of the Property Law Act 1969 (WA); exclusion of tenants does not prevent annexation or enforceability; method of discharge set out in the covenant does not make it unenforceable.

Parties
Appellant: Forestview Nominees Pty Ltd; Appellant: Silkchime Pty Ltd; Respondent: Perpetual Trustees WA Ltd
Jurisdiction
Australia
Judgment Date
30 October 1996
Procedural Posture
Appeal / Judgment
Outcome
appeal dismissed
Legal Topics
Restrictive Covenants, Equitable Estates and Interests, Passing of Benefit and Burden of Covenants, Enforceability, Annexation, Discharge of Covenants
Real Property Equity Restrictive Covenants Equitable Estates and Interests Passing of Benefit and Burden of Covenants Enforceability Annexation Discharge of Covenants

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Parties

Forestview Nominees Pty Ltd

Appellant

Silkchime Pty Ltd

Appellant

Perpetual Trustees WA Ltd

Respondent

Procedural Posture

Appeal / Judgment

Legal Issues

  1. 1 Whether the restrictive covenant is enforceable as against successors in title to the burdened land
  2. 2 Whether exclusion of tenants from the benefit prevents annexation of the covenant to the land
  3. 3 Whether limitation of the burden to registered proprietors expresses a contrary intention so that the burden does not pass

Ratio Decidendi

The restrictive covenant is enforceable against successors in title to the burdened land, including the appellants, regardless of the exclusion of tenants from its benefit; the covenant touches and concerns the benefited land, and there is no contrary intention expressed so as to prevent the burden from passing under s.48 of the Property Law Act 1969 (WA); exclusion of tenants does not prevent annexation or enforceability; method of discharge set out in the covenant does not make it unenforceable.

Court Disposition

appeal dismissed

Orders

  • The appeal is dismissed.
  • The Appellants pay the Respondent's costs of the appeal.