Midland Brick Company Pty Ltd v Welsh & Anor

(2006) 32 WAR 287; [2006] WASC 122

Supreme Court of Western Australia

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Interrogate

Catchwords

1. Property Law
2. › Restrictive covenants
3. › Covenants running with the land
4. › Whether benefit annexed to land retained by vendor
5. › Whether burden runs with land sold
6. › Negative covenants not to subdivide and not to complain about emissions
7. › Touch and concern requirement
8. › Property Law Act 1969 (WA), ss 47, 48, 49
1. Contract
2. › Construction and interpretation
3. › Parol evidence rule
4. › Whether extrinsic evidence admissible to identify subject matter and surrounding circumstances
5. › Whether implied terms arise from surrounding circumstances
6. › Codelfa Construction Pty Ltd v State Rail Authority of NSW
1. Property Law
2. › Torrens system
3. › Caveats
4. › Adequacy of description of estate or interest claimed
5. › Whether restrictive covenant creates caveatable interest
6. › Whether absolute caveat justified for covenant not to subdivide
7. › Form of caveat
8. › Transfer of Land Act 1893 (WA), ss 137, 138, 138C, 138D
1. Equity
2. › Injunctions
3. › Restraint of breach of negative covenant
4. › Discretion to grant injunction
5. › Whether injunction appropriate where caveat defective but caveatable interest established

Quick Take

Restrictive covenants in contracts of sale that do not expressly identify the benefited and burdened land may nonetheless be construed as touching and concerning retained land and running with the land sold, where the surrounding circumstances known to both parties make that intention apparent. A caveat claiming an interest 'as grantee' by virtue of a deed is insufficient to specify the estate or interest claimed under s 137 of the Transfer of Land Act 1893 (WA) where the deed does not on its face disclose the nature of the equitable interest. Where a caveatable interest is established but the caveat is defective, the court may grant injunctive relief to protect the interest pending lodgement of a fresh caveat.