5 May 2023
Leave under r19.5 was granted and the court ordered extinguishment of specified easement instruments under ss 316 and 317 PLA because extinguishment was necessary to enable vesting of road/reserve, the covenants had no practical application to land to vest, and no person entitled to the benefit would be substantially injured.
10 Mar 2022
The covenants were extinguished because lots 8-10 will be vested in the Council for confined ancillary utility (road) use such that the covenants have no meaningful application and their extinguishment will not substantially injure any person entitled, satisfying the statutory criteria in s317 Property Law Act 2007.
28 Feb 2022
The Court was satisfied that the statutory requirements of PLA s317 were met: there has been a material change in the nature and extent of use and the character of the neighbourhood since creation of the covenants, extinguishment is necessary to enable reasonable use (vesting of road and reserve) which could not reasonably have been foreseen by the original parties, extinguishment will not substantially injure any person entitled, and it is just and equitable; accordingly the covenants are extinguished as to the parts of the land to be vested as road and reserve, with ancillary orders and dir…
28 Aug 2017
The Court granted leave to appeal limited to three legal questions: whether rectification can bind a successor in title, whether a notified but improperly executed covenant binds successors, and whether the register entry was wrongful under s81 LTA 1952; the other grounds did not meet leave criteria given concurrent findings below and lack of broader significance.
20 Dec 2016
Read in context with the encumbrance and statutory background, the deed of covenant conferred substantive rights to use the parking spaces allocated to Lots 2 and 3 and to use the access-ways necessary for that use; those rights are enforceable in equity and the appellants can be restrained by injunction from denying the Body Corporate access and use; de-amalgamation did not terminate the deed's operation.
7 Sept 2012
The District Court order extinguishing the covenants was quashed because affected parties (the Applicants and other registered proprietors) were not afforded an opportunity to be heard; the Court restored the Memorandum to the title records and ordered joinder of all registered proprietors so that the substantive property rights dispute can be determined with all interested parties before it proceeds.
4 Oct 2011
Clause 5's authorisation to 'extend or replace' buildings implies replacement rather than indefinite clearance; demolition of the existing buildings on Lot 634 without promptly replacing them breaches clause 5 of the lease, so a declaration to that effect is granted. By contrast, the question whether importing/containing contaminated soil on Lot 634 breaches clause 6 raises factual and valuation issues that cannot be resolved on summary judgment, so that declaration is refused.
23 Nov 2007
The High Court held the contested conditions were intra vires: ss108(1) and 108(2)(c) authorised imposing conditions protecting indigenous vegetation and requiring pest/weed management on a subdivision; such continuing conditions can be secured by consent notices under s221 and be registered as covenants; the bracketed words in s108(2)(d) do not prevent this construction; the conditions were logically connected to the subdivision and not imposed for an ulterior purpose; appeal dismissed.