KERR v PERMANENT NOMINEES (AUST) LTD [1990] NSWCA 105

KERR v PERMANENT NOMINEES (AUST) LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

GLEESON CJ, SAMUELS and MAHONEY JJA 2 February 1990, 2 February 1990

[1990] NSWCA 105

Appeal from Equity Division — Restraint on erection on boundary of "a barrier to pedestrian traffic between" two lots "erected... as a dividing fence (within the meaning of the Dividing Fences Act 1951)" — Servient tenement erected garden plot along boundary c150mm high and clm wide surfaced with pine bark chips on which are trees 500mm — 3m high at intervals — Held not a breach of the restriction because: (per Gleeson CJ and Mahoney JA) it was not "a barrier to pedestrian traffic" within the meaning of the restraint; (per Samuels JA) it was not "erected... as a dividing fence (within the meaning of the Dividing Fences Act 1951)".

Gleeson CJ By a contract of sale dated 7 September 1983 the pLaintiff purchased certain land from the defendant's predecessor in title. The contract of sale provided for the creation of a restriction as to the user of the relevant land or the boundary between the two areas of land under s88B of the Conveyancing Act. That restriction was subsequently registered. The plaintiff complains that in 1984 the defendant's predecessor in title breached that restriction.

On 2 March 1988 the plaintiff commenced the present proceedings seeking an order that the defendant removes the things placed upon the relevant piece of the land constituting such breach.

On 2 September 1988 Young J held that what had been done did not constitute a breach of such restriction and dismissed the plaintiff's proceeding. The plaintiff appeals to this Court against his Honour's decision.

The restriction was imposed by an instrument registered on deposited plan No 634568. It was relevantly in the following terms: "(a) No boundary or dividing fences or walls or other obstacles which shall constitute a barrier to pedestrian traffic between the Lot hereby benefited and the Land hereby burdened shall be erected or be permitted to remain erected on the Land hereby burdened as a dividing fence (within the meaning of the Dividing Fences Act 1951) without the consent in writing of the registered proprietor from time to time of the Lot hereby benefited first had and obtained."