Deguisa v Lynn [2020] HCA 39

A person dealing with a registered proprietor of land is not to be regarded as having been notified of an encumbrance or qualification upon the title unless it can be ascertained from a search of the certificate of title or from a registered instrument referred to in a memorial entered in the Register Book. The benefited parcels in relation to the restrictive covenants were not notified on the certificate of title to Lot 3, and so the appellants were not bound by the restrictive covenants.

Parties: Appellant: Nick Deguisa; Respondent: Ann Lynn; Respondent: Other Respondents
Jurisdiction: Australia
Judgment Date: 04 November 2020
Procedural Posture: Appeal / High Court of Australia Decision (final Appellate Stage)
Outcome: Appeal allowed
Legal Topics: Torrens System, Restrictive Covenants, Land Title Registration, Common Building Scheme, Notification on Certificate of Title

Real Property Torrens System Restrictive Covenants Land Title Registration Common Building Scheme Notification on Certificate of Title

Case Brief

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Parties

Nick Deguisa

Appellant

Ann Lynn

Respondent

Other Respondents

Respondent

Procedural Posture

Appeal / High Court of Australia Decision (final Appellate Stage)

Legal Issues

1 Whether the appellants were notified of restrictive covenants in a memorandum of encumbrance in accordance with s 69 of the Real Property Act 1886 (SA)
2 Whether restrictive covenants purported to bind the appellants as part of a common building scheme

Ratio Decidendi

Court Disposition

Appeal allowed

Orders

Set aside the orders of the Full Court of the Supreme Court of South Australia made on 5 September 2019 and 3 March 2020.
Order that the appeal to that Court be allowed.