Forestview Nominees Pty Ltd v Perpetual Trustees WA Ltd [1998] HCA 15

High Court of Australia Gaudron, McHugh, Gummow, Kirby and Hayne JJ Forestview Nominees Pty Ltd v Perpetual Trustees WA Ltd [1998] HCA 15

ORDER

1. Appeal allowed in part.

2. Vary the order of the Full Court of the Federal Court of Australia dismissing the appeal so as to set aside Order 2 of the orders made by Carr J on 6 December 1995.

3. Otherwise appeal dismissed with costs.

Cur adv vult

The Court delivered the following written judgment: —

4 March 1998 Gaudron, McHugh, Gummow, Kirby and Hayne JJ

1. This appeal is brought from the Full Court of the Federal Court [1] (French, Einfeld and R D Nicholson JJ). The Full Court upheld the grant by a judge of the Federal Court (Carr J) [2] of declaratory relief, the effect of which was to confirm that a restrictive covenant upon an area of land at Warwick, a suburb of Perth, was effective according to its terms.

1. Forestview Nominees Pty Ltd v Perpetual Trustees WA Ltd (1996) 70 FCR 328. 2. Forestview Nominees Pty Ltd v Perpetual Trustees WA Ltd (1995) 133 ALR 465.

The facts

2. The second appellant, Silkchime Pty Ltd (Silkchime), is registered proprietor of an estate in fee simple of the land in certificate of title vol 2003 folio 201 (the burdened land), which was issued on 15 June 1994 under the Transfer of Land Act 1893 WA. By transfer registered 27 January 1995, Silkchime acquired the burdened land from the first appellant, Forestview Nominees Pty Ltd (Forestview). Silkchime and Forestview are associated companies. Forestview acquired the burdened land from National Mutual Life Association of Australasia Ltd (National Mutual) by transfer registered on the same day. The certificate of title to the burdened land shows it as subject to a restrictive covenant (the restrictive covenant) which was created by transfer F582167 (the transfer), registered 15 June 1994. The transfer was by National Mutual to the respondent, Perpetual Trustees WA Ltd (Perpetual), of an area of land (the subdivided land) adjoining the burdened land. The subdivided land increased the holding of Perpetual in respect of an area upon which the Warwick Grove Shopping Centre is erected (the Shopping Centre land). The subdivided land and the Shopping Centre land (with certain plant, equipment and other assets) were bought by Perpetual from National Mutual under a contract made 16 September 1993. The contract stated the total purchase price as $55.8 million, of which $500,000 was allocated to the subdivided land. The conveyance of the subdivided land was delayed by the need to subdivide the parcel comprising the subdivided land and the burdened land retained by National Mutual.