POLLAK v MILDER & ORS. [1999] NSWSC 19

POLLAK v MILDER & ORS. [1999] NSWSC 19

Although the parties to transfer G555295 intended the benefit of the restrictive covenant to be annexed to 24 Kulgoa Road and the reference to folio 36 was a mistake, the Milders had no equity against Mr Pollak for rectification, Mr Pollak's registered title was protected by Real Property Act 1900 s 42(1), and Conveyancing Act 1919 s 88(1) prevented enforcement against him because the instrument itself did not clearly indicate the Milders' land as benefited. The Milders were therefore not entitled to the relief claimed and the plaintiff was granted leave to discontinue.

Jurisdiction
Australia
Judgment Date
02 February 1999
Procedural Posture
Equity Proceedings Concerning Extinguishment or Rectification of a Restrictive Covenant Under the Torrens System / Hearing of Plaintiff's Application for Leave to Discontinue and First Defendant's Notices of Motion Seeking Rectification and Setting Aside of Registrar General Action
Outcome
Plaintiff granted leave to discontinue; first defendant's notices of motion dismissed; costs orders made.
Legal Topics
['restrictive Covenants' 'rectification' 'indefeasibility of Title' 'real Property Act 1900 S 42(1)' 'conveyancing Act 1919 S 88' 'discontinuance' 'costs']
['property Law' 'equity' 'torrens Title'] ['restrictive Covenants' 'rectification' 'indefeasibility of Title' 'real Property Act 1900 S 42(1)' 'conveyancing Act 1919 S 88' 'discontinuance' 'costs']

Case Brief

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Procedural Posture

Equity Proceedings Concerning Extinguishment or Rectification of a Restrictive Covenant Under the Torrens System / Hearing of Plaintiff's Application for Leave to Discontinue and First Defendant's Notices of Motion Seeking Rectification and Setting Aside of Registrar General Action

Legal Issues

  1. 1 ['Whether the restrictive covenant in transfer G555295 benefited the land at 24 Kulgoa Road or the land identified in the transfer as Certificate of Title volume 2754 folio 36.' 'Whether the Milders were entitled to rectification of transfer G555295 so that the Register would show their land as benefited by the restrictive covenant.' "Whether Mr Pollak's registered title was protected by Real Property Act 1900 s 42(1)." 'Whether Conveyancing Act 1919 s 88(1) prevented enforcement of the restrictive covenant against Mr Pollak.' 'Whether the plaintiff should have leave to discontinue after cancellation of the notification of the restrictive covenant.' 'What costs orders should be made.']

Ratio Decidendi

Although the parties to transfer G555295 intended the benefit of the restrictive covenant to be annexed to 24 Kulgoa Road and the reference to folio 36 was a mistake, the Milders had no equity against Mr Pollak for rectification, Mr Pollak's registered title was protected by Real Property Act 1900 s 42(1), and Conveyancing Act 1919 s 88(1) prevented enforcement against him because the instrument itself did not clearly indicate the Milders' land as benefited. The Milders were therefore not entitled to the relief claimed and the plaintiff was granted leave to discontinue.

Court Disposition

Plaintiff granted leave to discontinue; first defendant's notices of motion dismissed; costs orders made.

Orders

  • ['The plaintiff has leave to discontinue the proceedings.' 'Direct that notice of discontinuance be filed within two days.' "The first defendant's notice of motion of 10 December 1998 and two notices of motion of 1 February 1999 are dismissed." 'The plaintiff pay the legal professional costs of the proceedings...