main position is that the appeal judge properly interpreted the
positive covenants rule and correctly applied the exceptions to
that rule in accordance with Amberwood.
 More particularly, the respondents argue in their factum
that both the benefit and burden and the conditional grant
exceptions to the positive covenants rule are available in Ontario
and apply to the facts of this case. During oral argument,
however, the respondents did not contend that the benefit and
burden exception forms part of Ontario law, nor did they seek
to rely on that exception. Instead, they maintained that there
is a direct link under the trust deed between the benefits
conferred regarding the common property and the positive
obligation to pay the annual levy and, because the appellants
derive benefits under the trust deed, the conditional grant
exception applies to impose liability on the appellants for the
(3) Litigation history
( i) First action
 Ivon Owen ceased paying the annual levy in 2008. At that
time, the appellants were residing at his property and caring for
him. As a result of the non-payment, the then trustees of the
trust sued him, together with the appellants, in Small Claims
Court for recovery of the outstanding levies for 2008 and 2009.
 In 2010, Deputy Judge Kilian held that Ivon Owen was
required to pay the disputed annual levies. He held that Ivon
Owen and the appellants were aware of and had actual notice of
the trust and, on this basis, were bound by the terms of the trust
deed. He also found that the annual levy was used to maintain
and redevelop a private road inside Wychwood Park and, fur-
ther, to maintain the trees, fences, creek and other features of
the common property. He held that
The purpose of the trust was for the benefit of all of the property owners
inside the Wychwood area. Whether or not those owners make use of those
benefits is irrelevant. That is up to them.
 Deputy Judge Kilian therefore granted judgment in
favour of the trustees against Ivon Owen for $4,052.11 — the
amount of the annual levies for 2008 and 2009 — plus pre- and
post-judgment interest. He dismissed the action against the
appellants on the ground that they were merely acting on behalf
of Ivon Owen, the then owner of the property.
 Importantly, the positive covenants argument was not
raised before or considered by Deputy Judge Kilian.