POLLAK v MILDER & ORS. [1999] NSWSC 19

Reported Decision : (1999) NSW ConvR 55-910

New South Wales Supreme Court CITATION : POLLAK v MILDER & ORS. [1999] NSWSC 19 CURRENT JURISDICTION : EQUITY FILE NUMBER(S) : 1355/98 HEARING DATE(S) : 1 February 1999 JUDGMENT DATE : 2 February 1999

WOLF POLLAK v PARTIES : DAN GEORGE MILDER (D1) KAREN RUTH MILDER (D1) ANZ BANKING GROUP LTD (D2) JUDGMENT OF : Bryson J at 1

PLAINTIFF: MR V GRAY COUNSEL : FIRST DEFENDANTS: IN PERSON - UNREPRESENTED SECOND DEFENDANT: SUBMITTING APPEARANCE

PLAINTIFF: DENES EBNER SOLICITORS : FIRST DEFENDANTS: IN PERSON - UNREPRESENTED. SECOND DEFENDANT: NORTON SMITH & CO. - SUBMITTING APPEARANCE CATCHWORDS : TORRENS SYSTEM; restrictive covenant; transfer which created restrictive covenant in 1956 by mistake conferred benefit of covenant on land at Lambton NSW and not on land next door to the burdened land in Bellevue Hill; owner of burdened land claimed extinguishment but pending the hearing had the notification on his CT cancelled with the consent of the owner of the land at Lambton; owners of neighbouring land (in person) sought rectification so that Register would show their land as benefitted but failed because (1) they had no relationship with the plaintiff and no equity to rectification (2) s.42 of RPAct and (3) subs. 88 (1) of Conveyancing Act 1919 (which requires clear indication in the instrument creating restrictive covenant of the land benefitted and burdened.) Conveyancing Act 1919 s 88 ss88 (1) ACTS CITED : (3). Real Property Act 1900 ss 42 (1). Bahr v Nicolay [No 2] (1908) 164 CLR 604. Double Bay Newspapers Pty Limited & ors v A W Holdings Pty Limited & ors (1997) 42 NSWLR 409. DECISION : SEE PARAGRAPHS 29 AND 32