KERR v PERMANENT NOMINEES (AUST) LTD [1990] NSWCA 105

KERR v PERMANENT NOMINEES (AUST) LTD [1990] NSWCA 105

The structure erected, comprising kerbing, garden plot and shrubs, did not in its present condition constitute a barrier to pedestrian traffic within the meaning of the covenant, nor was it erected as a dividing fence within the meaning of the Dividing Fences Act 1951.

Parties
Appellant: Kerr; Respondent: Permanent Nominees (Aust) Ltd
Jurisdiction
Australia
Judgment Date
02 February 1990
Procedural Posture
Appeal / Judgment on Appeal From Equity Division
Outcome
Appeal dismissed with costs
Legal Topics
Restrictive Covenant, Dividing Fence, Interpretation of Statutory Terms
Property Law Equity Restrictive Covenant Dividing Fence Interpretation of Statutory Terms

Case Brief

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Parties

Kerr

Appellant

Permanent Nominees (Aust) Ltd

Respondent

Procedural Posture

Appeal / Judgment on Appeal From Equity Division

Legal Issues

  1. 1 Whether the structure erected on the boundary constituted a barrier to pedestrian traffic within the meaning of a registered restrictive covenant
  2. 2 Whether the structure was erected as a dividing fence within the meaning of the Dividing Fences Act 1951

Ratio Decidendi

The structure erected, comprising kerbing, garden plot and shrubs, did not in its present condition constitute a barrier to pedestrian traffic within the meaning of the covenant, nor was it erected as a dividing fence within the meaning of the Dividing Fences Act 1951.

Court Disposition

Appeal dismissed with costs

Orders

  • The appeal is dismissed with costs.