Deguisa v Lynn [2020] HCA 39

HIGH COURT OF AUSTRALIA

KIEFEL CJ, GAGELER, KEANE, GORDON AND EDELMAN JJ

NICK DEGUISA & ANOR APPELLANTS

AND

ANN LYNN & ORS RESPONDENTS

Deguisa v Lynn [2020] HCA 39 Date of Hearing: 2 September 2020 Date of Judgment: 4 November 2020 A4/2020

ORDER

1. Appeal allowed.

2. Set aside the orders of the Full Court of the Supreme Court of South Australia made on 5 September 2019 and 3 March 2020 and, in their place, order that:

(a) the appeal to that Court be allowed;

(b) paragraphs 1, 3, 4, 7 and 8 of the orders of the District Court of South Australia made on 29 August 2018 in matters DCCIV 1750 of 2016 and DCCIV 597 of 2018 be set aside and, in their place, it be ordered that:

(i) the balance of the plaintiffs' actions be dismissed; and

(ii) the plaintiffs pay the defendants' costs in both matters; and

(c) the respondents pay the appellants' costs in that Court.

3. The respondents pay the appellants' costs in this Court.

On appeal from the Supreme Court of South Australia

Representation

A L Tokley QC and H M Heuzenroeder for the appellants (instructed by Clarke Hemmerling Lawyers)

W J N Wells QC with R Ross-Smith for the respondents (instructed by Lindbloms Lawyers)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Deguisa v Lynn

Real property – Torrens system – Where appellants registered proprietors of land – Where appellants obtained planning approval to subdivide land and build two townhouses – Where present certificate of title for land referred to memorandum of encumbrance which prohibited erection of any buildings other than "a dwellinghouse" and prohibited "multiple dwellings" – Where back‑cover sheet of memorandum of encumbrance had typed statement indicating that encumbrance formed part of common building scheme – Where neither memorandum of encumbrance nor present certificate of title identified other lots benefited by restrictive covenants in memorandum of encumbrance – Where s 69 of Real Property Act 1886 (SA) provided title to land indefeasible subject to encumbrances and interests "notified" on original certificate of title of such land – Whether appellants were notified of restrictive covenants in memorandum of encumbrance in accordance with s 69.