246New sections 318A to 318E and cross-heading inserted

1. After section 318, insert:

   Enforcement, modification, and extinguishment of covenants in gross

   318AApplication of sections 308 to 312 to positive covenants in gross

   1. Sections 308 to 312 apply, with any necessary modifications, to a positive covenant in gross as if it were a covenant to which those sections apply.

   2. In this section, positive covenant in gross means a covenant in gross that requires the covenantor to do something in relation to the covenantor’s land.

   318BApplication of section 313 to covenants in gross

   1. Section 313 applies, with any necessary modifications, to a covenant in gross as if it were a covenant to which that section applies.

   318CApplication for order under section 318D

   1. A person bound by a covenant in gross may apply to a court for an order under section 318D modifying or extinguishing the covenant.

   2. The application may be made in a proceeding brought by that person for the purpose or in a proceeding brought by any person in relation to, or in relation to land burdened by, that covenant.

   3. The application must be served on—

   4. the territorial authority in accordance with relevant rules of court, unless the court directs otherwise on an application for the purpose; and
   5. any other persons, and in any manner, the court directs on an application for the purpose.

   318DCourt may modify or extinguish covenant in gross

   1. On an application (made and served in accordance with section 318C) for an order under this section, a court may, by order, modify or extinguish (wholly or partly) the covenant to which the application relates if satisfied that—

   2. the covenant ought to be modified or extinguished (wholly or partly) because of a change since its creation in all or any of the following:
      1. the nature or extent of the use being made of the burdened land:
      2. the character of the neighbourhood:
      3. any other circumstances the court considers relevant; or
   3. after reasonable inquiries have been made, the covenantee cannot be found; or
   4. the continuation of the covenant in its existing form would impede the reasonable use of the burdened land in a different way, or to a different extent, from that which could reasonably have been foreseen by the original covenantor and covenantee at the time of its creation; or
   5. every person entitled who is of full age and capacity—
      1. has agreed that the covenant should be modified or extinguished (wholly or partly); or
      2. may reasonably be considered, by act or omission, to have abandoned, or waived the right to, the covenant, wholly or partly; or
   6. the proposed modification or extinguishment will not substantially injure any person entitled; or
   7. the covenant is contrary to public policy or to any enactment or rule of law; or
   8. for any other reason, it is just and equitable to modify or extinguish the covenant, wholly or partly.

   9. An order under this section modifying or extinguishing the covenant may require the applicant for the order to pay to any other person specified in the order reasonable compensation as determined by the court.

   10. Nothing in this section limits or affects the operation of any other enactment or rule of law under which a covenant in gross may be—

   11. declared void or voidable; or
   12. set aside, cancelled, or extinguished; or
   13. modified or varied.

   318ERegistration and recording of orders under section 318D

   1. If an order is made under section 318D in respect of a covenant in gross that is noted (in accordance with section 307F) on the record of title for the land burdened by the covenant, the Registrar must enter on the record of title all amendments or entries necessary to give effect to the order.

   2. The amendments and entries are, when entered, binding on every person who is, or who later becomes, a person entitled, whether or not that person—

   3. was of full age and capacity at the time the order was made; or
   4. was a party to the proceeding.

   5. If an order is made under section 318D in respect of a covenant in gross to which subsection (1) does not apply, a court may, on an application for the purpose and by a written direction, require the order to be noted on any instruments of title or register relating to the burdened land.

   6. Every person to whom a written direction under subsection (3) is addressed must comply with that direction.