Recent Cases

Aust-One Investment Pty Ltd v New World Investments Pty Ltd [2023] NSWCA 22 (21 February 2023) (Macfarlan, Mitchelmore and Kirk JJA)


Catchwords:


LAND LAW – positive covenants – enforceability of positive covenants – positive covenant in registered easement requiring owner of dominant tenement to pay proportion of rental payments from lease of shops to owner of servient tenement – whether positive covenant binding on successors in title to owner of dominant tenement – scope of conditional benefit principle – whether conditional benefit principle forms part of Australian law – whether primary judge erred in applying conditional benefit principle to the facts – whether positive covenant part of the essential fabric of the registered easement

LAND LAW – easements – construction of easements – admissibility of information beyond the register – whether earlier deed between parties to an easement admissible as an aid to construction of the easement – whether primary judge erred in having regard to earlier deed, even for limited purpose