Adrienne Ryan v Margaret Mary Sutherland (No 2) [2011] NSWSC 1579

Supreme Court New South Wales

Medium Neutral Citation: Adrienne Ryan v Margaret Mary Sutherland (No 2) [2011] NSWSC 1579 Hearing dates: 31 October 2011 Decision date: 14 December 2011 Jurisdiction: Equity Division Before: Black J Decision: Declaration as to validity of restriction on user. Catchwords: REAL PROPERTY - Easements - Restrictive covenants - Validity of restriction permitting use for recreational and other purposes Category: Consequential orders Parties: Adrienne Ryan (Plaintiff) Margaret Mary Sutherland (Defendant) Representation: Counsel: G.A. Sirtes SC/J. Knackstredt (Plaintiff) S. Reuben (Defendant) Solicitors: Fox & Staniland (Plaintiff) P. Dobrich & Co (Defendant) File Number(s): 10/132302

Judgment 1On 31 October 2011, I delivered judgment in these proceedings in which the Plaintiff ("Mrs Ryan") sought declarations that a restriction as to user created by a registered dealing was void or otherwise did not affect her land. I held that, on balance, the restriction as to user was properly construed as an easement rather than a restrictive covenant and that it would be valid as either an easement or a restrictive covenant. 2By Amended Cross-Summons, the owner of the property benefited by the restriction on user, Mrs Sutherland, sought a declaration that the restriction as to user was valid, effectual and enforceable according to its terms to benefit her land and to burden Mrs Ryan's land, and also, in the alternative, other orders. I noted that no occasion for rectification or modification of the restriction on user arose on the findings which I had reached. 3When I delivered my judgment, I inadvertently did not make orders disposing of Mrs Sutherland's Amended Cross-Summons. After this matter came to my attention, my Associate wrote to the parties' legal representatives asking whether they accepted that the proper orders in respect of the Amended Cross-Summons, consequent upon my judgment, would be to make the declaration sought in paragraph 1 of the Amended Cross-Summons and otherwise dismiss the Amended Cross-Summons. Both parties accepted that those orders would be appropriate in the light of my judgment. 4Accordingly, I make the following additional orders: 1. Declare that the restriction as to user created by an instrument pursuant to s 88B of the Conveyancing Act 1919 (NSW) registered as DP 267185 is valid, effectual and enforceable according to its terms to benefit Lot 1 in DP 517200 and to burden Lot 2 in DP 517200. 2. The Amended Cross-Summons filed in these proceedings otherwise be dismissed.