1Under the Torrens system in Victoria, following Deguisa v Lynn and Jeshing Property Management Pty Ltd v Yang, the evidence admissible to establish the nature and extent of a restrictive covenant encumbering registered land is limited to: the certificate of title itself; any registered instrument recorded on the certificate of title; and any other document on the Register referred to or incorporated by reference in the registered instrument containing the covenant — wider searches of the Register are impermissible to complete or construe the covenant.
2A building scheme is not enforceable against a registered proprietor of Torrens land unless all essential elements — including the mutual and reciprocal nature of the restrictions — are disclosed by the admissible documents from which notice of the encumbrance is given; the existence of a network of like covenants discoverable only by searching the transfers of each lot in a subdivision is inadmissible for this purpose.
3Where a lot on a plan of subdivision has been cancelled by registration of a subsequent plan of subdivision before a covenant is created, that lot is no longer 'comprised in' the original plan of subdivision for the purposes of construing words of annexation in the covenant, and the benefit of the covenant cannot attach to land formerly within that cancelled lot. The court left open the broader question whether the transition from parchment to electronic folios — which record less transactional detail — may render many modern covenants unenforceable for inability to identify benefited land from permissible sources.
