Shaw v Applegate: CA 1977

There was a covenant against the use of a property as an amusement arcade. Within three years the purchaser had installed amusement machines, but it was not until three years later that the plaintiffs issued proceedings for an injunction and damages. The plaintiff appealed a decsion that he had lost the ability to enforce the covenant through delay.
Held: The appeal succeeded, but the remedy was limited to damages. The court considered the continuing enforceability of a restrictive covenant.
Buckley LJ said: ‘The real test, I think, must be whether upon the facts of the particular case the situation has become such that it would be dishonest or unconscionable for the plaintiff, or the person having the rights sought to be enforced, to continue to seek to enforce it.’ As to Willmott -v- Barber: ‘As I understand that passage, what the judge is there saying is that where a man has got a legal right – as the plaintiffs have in the present case, being legal assignees of the benefit of the covenant binding the defendant – acquiescence on their part will not deprive them of that legal right unless it is of such a nature and in such circumstances that it would really be dishonest or unconscionable of the plaintiffs to set up that right after what has occurred.’
Buckley LJ, Goff LJ
[1977] 1 WLR 970
England and Wales
CitedWillmott v Barber ChD 19-Jun-1880
In 1869 Barber granted a 99-year lease of three acres of land in east London, subject to a covenant against assignment or sub-letting without consent. In 1874, in breach of covenant, he sub-let one acre on an annual tenancy to Willmott (who owned a . .
ExlainedWilmott v Barber ChD 19-Jun-1880
The lessee of three acres of land agreed in January, 1874, to let one acre to the Plaintiff for the whole of the residue of his term, and he agreed also to sell to the Plaintiff his interest in the whole three acres at any time within five years . .

Cited by:
CitedWWF (World Wide Fund for Nature) and Another v World Wrestling Federation Entertainment Inc CA 2-Apr-2007
The parties had disputed use of the initals WWF, with a compromise reached in 1994 allowing primary use by the Fund with restricted use by the Federation. The Federation now appealed an award of damages made after a finding of a breach of the . .
AppliedGafford v A H Graham and Grandco Securities Limited CA 8-Apr-1998
A land owner who was aware of his rights under a restrictive covenant, and who stood by whilst a riding school was erected in breach of the covenant, was not later to be allowed injunctive mandatory relief to enforce the covenant, by virtue of his . .
CitedHarris v Williams-Wynne ChD 11-Feb-2005
The parties agreed in sale agreement for a plot of land that the buyer would not erect any additional building. He did so, and when he came to try to sell it the original vendor objected. The purchaser’s solicitors registered the agreement for sale. . .
CitedTurner and Another v Pryce and others ChD 9-Jan-2008
The claimants asserted that they had the benefit of restrictive covenants under a building scheme to prevent the defendants erecting more houses in their neighbouring garden. The defendants pointed to alleged breaches of the same scheme by the . .
CitedFisher v Brooker and Others HL 30-Jul-2009
The claimant sought a share in the royalties from the song ‘A whiter shade of pale’ but had delayed his claim for 38 years. He had contributed the organ solo which had contributed significantly to the song’s success. He now sought a share of future . .
CitedMills v Partridge, The Estate of and Another ChD 5-Aug-2020
Rights and obligations relating to three parcels of land . .
CitedArgus Media Ltd v Halim QBD 7-Feb-2019
Challenge to validity of post employment restraint clause. . .
CitedSingh v Rainbow Court Townhouses Ltd PC 19-Jul-2018
(Trinidad and Tobago) . .

Lists of cited by and citing cases may be incomplete.
Updated: 20 September 2021; Ref: scu.250686