2 In 1949 Mr Assandri's predecessor in title took a transfer of the land which comprises 1 rood 127/10 perches from members of the Lord family who at that stage owned the balance of the lands comprised in Certificate of Title registered Volume 397 Folio 63. That title originally contained in excess of 250 acres on Mount Nelson and by 1949 large numbers of building blocks had been surveyed and many had been sold. Subsequently to 1949 many more such blocks were sold. The sale to Mr Assandri's predecessor, Mrs Horton, was implemented by Memorandum of Transfer registered No 128478 which expressed the transfer to Mrs Horton to be "subject to the fencing condition" and continued:

"And the Purchaser hereby for herself her personal representatives and assigns covenants with the Vendors as the registered Proprietors of the untransferred balance of the land comprised and described in Certificate of Title Registered Volume 397 Folio 63 and with the intent to bind the owner or owners for the time being of the said Lot but not so as to be personally liable after she or they have transferred the said Lot.

1 Not to erect on the said lot any dwelling house of a less value than One thousand five hundred pounds such value to be the actual cost in labour and materials only and any question as to value shall be settled by such valuer as the Vendors may select and all necessary vouchers shall be produced to such valuer.

2 Not to carry on nor permit to be carried on any trades noisome noxious or offensive or otherwise upon the said Lot.

3 Not to erect more than one messuage on the said Lot. And not to use or permit to be used any messuage upon the said Lot for any other purpose than as a private dwelling house.

4 That the Vendors will not be liable or required to contribute in paying for or to pay the cost of any construction reconstruction or widening of any street, road, footway or right of way abutting on the said Lot or any part thereof.

PROVIDED THAT the Vendors shall have the right to sell and transfer any part of the untransferred balance of the land comprised and described in the said Certificate of Title Registered Volume 397 Folio 63 free from any similar covenants restrictions or stipulations."

There is presently one messuage erected on the land, the title to which is now comprised in Certificate of Title registered Volume 2637 Folio 86 which certifies that Mr Assandri is the registered proprietor of that land for an estate in fee simple together with such interests and subject to such encumbrances as are shown in the second schedule thereto. That schedule, prior to the determination complained of, read as follows:

"SECOND SCHEDULE

SUBJECT TO a right of carriageway for Darrel Keith Lord, Athol Warrender Lord and Florence Jessie Lord and the owner or owners for the time being Lots 4, 5, 7, 8, 10 and 11 on Plan No 1119 over the portion of the land comprised herein marked L E F G K on P1119

TOGETHER WITH the right of carriageway for the owner or owners of the said land within described over the lands marked G H J K M E L, AB and CD on P1119

128478 FENCING & OTHER CONDITIONS in Transfer"

3 The prosecutor, Mr Horlock, is registered proprietor of land comprised in Certificate of Title registered Volume 2585 Folio 74 and containing nearly half an acre. His back boundary is approximately 160 feet from the back boundary of Mr Assandri's land. The other prosecutors, Mr & Mrs Waters, are registered proprietors of land comprised in Certificate of Title registered Volume 2609 Folio 64 and containing 1 rood 221/10 perches. They share a common back boundary with Mr Assandri. Mr Horlock purchased his block direct from the Lord family in 1951 and his transfer was made subject to a fencing condition and other conditions (the full terms of which the evidence does not reveal). The Waters' predecessor in title also purchased their block from the Lord family in 1951 and that transfer was also made subject to a fencing and other conditions not revealed by the evidence.

4 On 15 October 1990, pursuant to an application B383838 by Mr Assandri "to have the conditions 'Not to erect more than one messuage on the said Lot' extinguished from the land comprised in" his Certificate of Title, the Recorder made an order in the following terms:

"IN THE MATTER of Section 102(6) of the Land Titles Act 1980

IN THE MATTER of a covenant on Lot 9 on Plan No p1119 situated in the City of Hobart comprised in Folio of the Register Volume 2637 Folio 86

ORDER

BE IT REMEMBERED that the land in Folio of the Register Volume 2637 Folio 86 is subject to various covenants one of which provides 'Not to erect more than one messuage on the said Lot'.

AND Oliver Assandri, the registered proprietor of the said land has applied for an order to cancel the said covenant from Folio of the Register Volume 2637 Folio 86.

AND The Recorder of Titles upon due investigation did on the 15th day of October 1990 order that the said covenant shall be cancelled from the land in the said Folio.

Sealed with the Official Seal

of the Recorder of Titles the LS

15th day of October 1990

5 Although the order purports to cancel the covenant in question, the Recorder's power is merely to cancel the recording which he is satisfied indicates the existence of a covenant which does not run with the land. As a consequence of the order which also bears the number B383838, the Recorder endorsed Folio 86 of Certificate of Title registered Volume 2637 with the words:

"B383838 APPLICATION - Cancelling part of Covenant No 3 contained within Transfer No 128478 herein pursuant to section 102(6) of the Land Titles Act 1980 Registered 3.12.1990 at Noon".

He then signed the entry. Mr Assandri now has planning approval to subdivide his land and the prosecutors anticipate that either he will build another messuage on the lot originally transferred to his predecessor in title or that some purchaser of part thereof will do so. With the covenant now cancelled from his Certificate of Title, he has an indefeasible title unaffected by it (s40).

1">6 The material parts of s102 of the Act provide:

"102 - (1) Except as provided in this Division, the burden of a covenant does not run with freehold registered land.

(2) Subject to subsection (3), the burden of a covenant runs with freehold registered land if -

(i) entered into before the land was brought under this Act or the repealed Act; or

(ii) included in a transfer which was registered before the proclaimed date;

(iii) notice of the covenant is recorded on the folio of the Register constituting the title to the land intended to be burdened; and

(iv) the land intended to be benefited by the covenant is identified in the instrument containing the covenant;

(b) the covenant is set forth in a sealed plan which has taken effect under Division II of Part XVI of the Local Government Act 1962;

(c) the covenant is contained in a dealing that was registered under section 27B or Section 27D of the Real Property Act 1886; or

(d) the covenant is created pursuant to subsection (7) or subsection (8).

(3) A covenant which runs with freehold registered land pursuant to subsection (2) may be enforced in equity notwithstanding any provision of this Act but has no greater operation or effect by the operation of this section than it would have if the land which it is intended to burden were not registered land and the registered proprietor of the land were affected in equity by express notice of the covenant.

.....

(6) Where the Recorder is satisfied that a recording in the Register indicates the existence of -

(a) a covenant which does not run with the land; or

(b) conditions deemed in accordance with subsection (4) to be covenants which do not run with the land,

7 Counsel for the prosecutors contends that if the covenant has the characteristics mentioned in s102(2)(a) the burden of it runs with Mr Assandri's land, and if that is the situation, the covenant must run with the land and the Recorder could not be satisfied under s102(6) that there is any recording in the Register which indicates the existence of a covenant which does not run with the land. Counsel for Mr Assandri contends that the covenant does not have those characteristics, while counsel for the Recorder submits that as the burden of a covenant cannot run without a corresponding benefit and that as the covenant in the 1949 transfer was annexed to and benefited the balance of the land in the parent title as it then existed as a whole and not as to each and every part thereof, the benefit of the covenant was lost when the land to which it was annexed lost its integrity upon the transfer thereout of any further allotment. Consequently there being no land having the benefit of the covenant, Mr Assandri's land cannot be said to have the burden of it running with it and accordingly the covenant has ceased to run.

8 Clearly enough, for the purposes of s102(2)(a)(ii), the covenant was included in a transfer which was registered before the proclaimed date, that is the date of commencement of the Act as fixed by Proclamation under s2(2) thereof. For the purposes of subpara(iii) of s102(2)(a), the notice of the covenant is submitted by the prosecutors to be the notification in the Second Schedule in these words "128478 FENCING & OTHER CONDITIONS in Transfer". Counsel for Mr Assandri submits that such an entry is not notice of any covenant. It refers only to conditions. Furthermore, he submits that notice of the covenant is not recorded on the Folio of the Register if there is merely a reference to some other documentation to be found elsewhere on the Register maintained by the Recorder.

9 My brother Zeeman had occasion to consider the requirements of s102(2)(a)(iii) in Sieminski v Brooks Nominees Pty Ltd Unreported 56/1990 ([1990] Tas R 236) where he cited the statement of principle by Orde J in Re Campbell and Cowdy [1928] 1 DLR 1034 at p1037 (in turn cited with approval by Neasey J in In re Cashmore's Application [1967] Tas SR 217) to this effect:

"The whole object of the Act is to define the nature and extent of the title as registered, and so that the certificate of ownership shall disclose the full title of the owner with whatever charges liens or other encumbrances may be registered against it. A purchaser under such a certificate ought not to be put upon enquiry as to anything beyond what the certificate itself discloses ... To give to others rights which are not spread upon the face of the register is, in my opinion, quite opposed to the whole intention of the Act. And I think that when restrictive conditions are registered under s99 of the Act, if those who impose the conditions intend the benefit of these to attach to and run with other lands, those other lands ought to be clearly defined and set forth in the register and the certificate of ownership."

Zeeman J also referred to a number of English cases dealing with the meaning of notice in various contexts (Greenwood v Leather Shod Wheel Company [1900] 1 Ch 421; County Laboratories Ltd v J Mindel Ltd [1957] 1 Ch 295; and Goodyear Tyre and Rubber Co (Great Britain) Ltd v Lancashire Batteries Ltd [1958] 1 WLR 857), but found it unnecessary to determine whether it is essential that covenants be defined and set forth in the Register at least in substance. He noted (at p13) that "such a requirement can not be said to be of general application as it has been significantly modified by statute (eg s102(2)(b) of the Act)". He went on:

"Nevertheless, I hold that for there to be 'notice of the covenant recorded on the folio of the Register' within the meaning of s102(2)(a)(iii), as a minimum, what needs to be recorded on such folio is either the substantial effect of the covenant or a reference to the instrument creating the covenant where its terms may be found. It may be argued that the mere reference to such an instrument is insufficient, or is insufficient if such instrument is not registered under the Act. I do not need to consider such arguments in the light of the conclusions which I have reached."

In the circumstances of that case, not only was the covenant not set out on the relevant Folio of the Register, but it was not set out in the Transfer to which the notation in that Folio referred and which in turn referred to yet another Certificate of Title which gave no indication as to how or when the covenants in question were created.

10 I agree with his Honour's view as to the minimum requirements. In this case the covenant is not set out on the relevant Folio, but there is a reference to the instrument creating it where its full terms may be found. Is the notation sufficient to comply with s102(2)(a)(iii)? With respect, it is a remarkably clumsy way in which to express an encumbrance or interest to which the estate in fee simple of the registered proprietor is subject to merely say "128478 FENCING & OTHER CONDITIONS in Transfer". Nevertheless, it is, in its oblique way, a reference to conditions which are to be found in transfer 128478 and the reader, upon perusing that document, will see the full extent of the conditions and covenants therein created. The fact that the covenant in question is not referred to as a covenant in the Folio but merely as one of several conditions (some of which are covenants restrictive of the use of land) does not, in my view, constitute a failure to meet the indicia of subpara(iii). I hold that notice of the covenant is recorded on the Folio of the Register constituting the title to the land intended to be burdened.

11 The next question is whether or not the land intended to be benefited by the covenant is identified in the instrument containing the covenant. The original purchaser covenanted "with the Vendors as the registered Proprietors of the untransferred balance of the land comprised and described in Certificate of Title Registered Volume 397 Folio 63". A common formula used to expressly annex the benefit of the covenant to land is for the covenant to be expressed as made with the covenantee, his heirs and assigns, in his capacity as owner of named land (Drake v Gray [1936] Ch 451, per Greene LJ, at p466 and Pirie v Registrar-General [1962] HCA 58; (1962) 109 CLR 619, per Kitto J, at p625). Although in this case there was no express reference to the heirs, successors and assigns of the Vendors, s71 of the Conveyancing and Law of Property Act 1884 provided that a covenant relating to land should be deemed to be made with the covenantee, his executors, administrators and assigns, and should have effect as if executors, administrators and assigns were expressed. The land in question is clearly identified as the balance in the parent Certificate of Title after transfer of the land the subject of that transfer. In my view, that is a sufficient identification in the instrument creating the covenant of the land intended to be benefited thereby.

12 Prima facie then the burden of the covenant runs with Mr Assandri's land. Of course, under s102(3) the covenant has no greater operation or effect by the operation of this section than it would have if the land which it is intended to burden were not registered land and the registered proprietor of the land were affected in equity by express notice of the covenant. To what extent it is enforceable, and by whom, are matters which fall outside the section. Such covenants operate, as Neasey J said when considering s27C of the Real Property Act 1886 inserted by s8 of the Real Property Act 1962 and which is in terms generally to the same effect, "... according to their tenor as they would under the general law, but this is no more than a statutory enactment of the pre-existing condition." (In re Cashmore's Application (supra) at p222).

13 In many Australian jurisdictions there was, for a long time, doubt as to what kind of restrictive covenants could be registered under the Torrens System of land holding. In New South Wales such a covenant, if created prior to 1920, could be sustained by a common building scheme notwithstanding that the instrument creating it did not disclose an intention that by force of its own language the benefit of it should be annexed to other land and could be registered (eg Pirie v Registrar-General (supra) and Sutton v Shoppee [1963] SR (NSW) 853). In Tasmania, covenants such as that now under consideration were likewise on occasions registered by the Recorder, although at times they, too, relied for their alleged enforceability upon a common building scheme. Neasey J in In re Cashmore's Application (supra) held that a common building scheme could not sustain such a covenant on Torrens system land in Tasmania unless the lands to be benefited by the covenant were identified on the face of the Register (which they were not in that case). The Act which came into force in 1980 gives the Recorder a summary power to cull the Register and to cancel any recording which does not satisfy the indicia of s102(12) which effectively confirms the position, as Neasey J held it to be, so far as common building schemes are concerned and defines the limits of registrable restrictive covenants. That power, however, is, in my view, a limited power and it is not intended that the Recorder should, in reliance only on it, determine whether, according to their tenor, they do effectively operate as restrictive covenants running with the land.

14 In Rogers v Hosegood [1900] 2 Ch 388, it was held that a similar restrictive covenant expressed to inure to the benefit of the owners of the legal estate, their heirs and assigns, of all or any of their lands adjoining or near to the covenantor's land could be enforced by the purchaser without notice of the covenant of part of the benefited land near to it. In In re Ballard's Conveyance [1937] 1 Ch 473, Clauson J held that where the land to be benefited was the entirety of the covenantee's land and was not expressed to include any part or parts thereof and where demonstrably, in that case, where 1,700 acres were retained, the covenant could not touch and concern large sections of it, he could not sever the covenant so as to make it enforceable by the owners of such portions as it did touch or concern.

15 In Re Arcade Hotel Pty Ltd [1962] VicRp 41; [1962] VR 274 Lowe and Gavan Duffy JJ held, in the circumstances of that case, that a covenant in respect of a balance title not expressed to include each and every part of it inured only for the benefit of the whole of the retained land at the time of the transfer creating the covenant and that the benefit of it was not annexed to portions thereof excised from the land. In a lengthy dissenting judgment, which commands great respect, Sholl J took the opposite view, pointing out that the English Court of Appeal in Drake v Gray (supra) had unanimously held that the benefit of a restrictive covenant was annexed to each and every part of the benefited land notwithstanding the absence of the words "or any part thereof". At p292, Sholl J made what, with respect, appears to me to be a telling point:

"... in the case of an ordinary subdivisional realization in allotments, such as has been so familiar in this State, and elsewhere in Australia, at least during this century, the last thing the parties to a transfer are likely to intend is that the annexation of the benefit of a restrictive covenant to the land of the vendor remaining in the parent (or subdivisional) title at the date of the transfer should be an annexation to that remaining land while held as a whole only, and not otherwise. Both parties know and expect that there will be other transfers to follow; indeed, in many cases it is well known that other lots have already been sold under terms contracts. If the annexation is in such a case construed as attaching the benefit only to the then untransferred land as a whole, and while it continues in the one legal ownership, then the very next transfer, even of a single lot, out of the parent title will wholly destroy the effect of the annexation; and so it would have been in the case of every one of the many hundreds of subdivisions in Victoria in which restrictive covenants have been imposed in terms very similar to those used in the transfer of Lot 8 in the present case."

16 In Ellison v O'Neill (1968) 88 WN (Pt1) (NSW) 213 Wallace p expressed a preference for the reasoning of the majority in Re Arcade Hotel Pty Ltd over the dissent of Sholl J and with Walsh JA held the covenant there in question to be annexed only to the entirety of the land benefited. The latter said, at p220:

"... If the language of the instrument which contains the covenants, considered in the light of any surrounding circumstances which may legitimately be regarded as an aid to construction, contains a sufficient indication, either that the benefit of the covenants is attached only to the designated land as an entirety, or that it is attached also to portions of the land, then the problem is solved by construing the covenants in accordance with that indication."

17 In Federated Homes Ltd v Mill Lodge Properties Ltd [1979] EWCA Civ 3; [1980] 1 All ER 371 the English Court of Appeal indicated preference for the view that the court should lean in favour of construing covenants as annexed to the whole of the land and each and every part of it.

18 It can thus been seen that it is no easy question to determine whether, in the circumstances of any given case, the benefit of a covenant is to run with parts of land originally expressed to have that benefit but which parts have been excised thereout. There are (and were prior to 1980) differences of opinion at appellate level as to the proper approach to the question of construction and each instrument creating such a covenant requires separate construction. Furthermore, the surrounding circumstances (the limits of which it is legitimate to have regard to as an aid to construction are hard to define) may vary significantly from one case to the next. Having regard to these considerations and to the fact that a comprehensive mechanism is available under Part XV(A) of the Conveyancing and Law of Property Act 1884 for the resolution of such questions, with full opportunities for those interested to make representations and with access to the Supreme Court provided for, I have little doubt that it was not the intention of Parliament in enacting s102(6) to empower the Recorder to make such decisions. The summary power is confined to culling from the Register those covenants which do not satisfy the criteria of s102(2).

19 Accordingly, in my view, the Recorder was in error in making the order which he did. It is not disputed that he is amenable to Certiorari and that the error, if error it be, warrants its grant. The order nisi will be made absolute.