Adrienne Ryan v Margaret Mary Sutherland

Judgment 1The Plaintiff ("Mrs Ryan") seeks declarations that a restriction as to user created by a registered dealing ("restriction as to user") is void; or alternatively a declaration pursuant to s 89(3) of the Conveyancing Act 1919 (NSW) that her land ("Lot 2") is not affected by the restriction as to user; or alternatively that the restriction as to user is an easement or a positive covenant; or alternatively that the restriction as to user is not enforceable by the Defendant ("Mrs Sutherland"). Mrs Ryan also seeks an order that the restriction as to user be removed from the title of Lot 2. 2By Cross-Summons, Mrs Sutherland seeks a declaration that the restriction as to user created by the relevant instrument is valid, effectual and enforceable according to its terms to benefit her land ("Lot 1") and to burden Lot 2, or, alternatively, an order under Conveyancing Act 1919 (NSW) s 89 modifying the terms of the restriction as to user to give effect to the matters the Court may determine were intended by the instrument. Following an amendment of the Cross-Claim, for which I granted leave in order to permit the real issues in the case to be determined and in the absence of any suggested prejudice to Mrs Ryan, Mrs Sutherland also claims additional orders that: 2A. An order that the said instrument be modified and/or rectified so as to express the true agreement that the Court may in the premises determine was intended by the instrument by inserting after the heading '1. Terms of restriction firstly referred to in the above mentioned plan; the following words in the body of the restriction; not to interfere with the ... 2B. Orders for the performance and carrying into effect the modification and/or rectification of the said instrument. 3The relevant facts are straightforward. Lot 2 is burdened by a restriction as to user created under s 88B of the Conveyancing Act 1919 (NSW) and Lot 1 has the benefit of that restriction as to user. Section 88B(2) of the Conveyancing Act provides for the registration of plans which provide for the creation of easements and restrictions on use of land. Upon registration of such a plan, the easement or restriction on use is created by virtue of that registration: s 88B(3)(c) and see Westfield Management Ltd v Perpetual Trustee Company Limited [2007] HCA 45; (2007) 233 CLR 528 at [3]. 4The restriction is contained in an instrument headed "Instrument setting out Terms of Easements and Restrictions as to User intended to be created pursuant to section 88B, Conveyancing Act, 1919" and refers to a "Plan of Area Subject to Restriction as to User within Lot 2, DP [omitted]". The character of the restriction is described as a "restriction as to user". The lot burdened is identified as Lot 2 and the lot benefited as Lot 1. The terms of the restriction are described as follows: