Question 4

Read the three judgements below and then answer the following questions.  

Rural View Developments P/L v Fastfort P/L & Anor [2009] QSC 244

Rhone v Stephens [1994]  2 All ER 65

Rufa Pty Ltd v Cross [1981] Qd R 365

i) What is the plaintiff in seeking to have done in Rural View by bringing this action?

ii) What grounds did the defendant rely on to refuse the plaintiff’s demand?

iii) In Rhone v Stephens the Judge explains why the law allows negative covenants to run with the land but not positive ones. Explain in your own words why this is the case.

iv) In Rufa Pty Ltd v Cross two Judges arrive at the same result but for two different reasons. Explain in your own words the reasoning of the two judges.

v) Why was the Judge in Rhone v Stephens not prepared to recognise a pure principle that those who derive a benefit from a conveyance must also accept the burden of that conveyance?

vi) How does the Judge in Rural View explain that the conclusion from Rufa Pty Ltd v Cross is not applicable in their case?

vii) What was the consequence for the case of Clause 5 in Rural View being found unenforceable?

viii) What reasons does the Judge give a finding of the enforceability of Clause 5 would not assist the defendant either?  

Readings