Cumerlong Holdings Pty Ltd v Dalcross Properties Pty Ltd [2011] HCA 27

HIGH COURT OF AUSTRALIA

GUMMOW ACJ,

HAYNE, HEYDON, CRENNAN AND BELL JJ

CUMERLONG HOLDINGS PTY LTD APPELLANT

AND

DALCROSS PROPERTIES PTY LTD & ORS RESPONDENTS

Cumerlong Holdings Pty Ltd v Dalcross Properties Pty Ltd [2011] HCA 27

3 August 2011

S120/2011

ORDER

1. Appeal allowed.

2. Set aside the orders of the Court of Appeal of the Supreme Court of New South Wales made 2 September 2010, and in place thereof order that:

(a) the appeal be allowed;

(b) the first and second respondents pay the appellant's costs of the appeal to the Court of Appeal up to and including 11 July 2010 and the third respondent pay the appellant's costs thereafter;

(c) set aside order 3 of the orders of Smart AJ of the Supreme Court made 30 October 2009, and in place thereof:

(i) declare that the change expressed by LEP 194 to the zoning of the land of the appellant, identified as Lot 1 in DP302605, does not have effect to suspend the operation of the restrictive covenant burdening the land of the third respondent, identified as Lot 103 in DP834629; and

(ii) order that the third respondent be restrained, by itself, its servants and agents, from using or permitting the use of Lot 103 in DP834629 for any hospital, or any ancillary or associated purpose, contrary to the restriction imposed by instrument registered on 10 November 1993 pursuant to s 88B of the Conveyancing Act 1919 (NSW);

(d) amend order 4 of the orders of Smart AJ made 30 October 2009 by deleting "Plaintiff pay the defendants' costs of these proceedings" and substituting "First and second defendants pay the plaintiff's costs of these proceedings".

3. The third respondent is to pay the appellant's costs of the appeal to this Court.

On appeal from the Supreme Court of New South Wales

Representation

P J McEwen SC with S B Nash and N M Eastman for the appellant (instructed by Allsop Glover)