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Berryman v Sonnenschein

Berryman v Sonnenschein

Case [2008] NSWSC 213 14 March 2008

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CITATION: Richard Frank Horton Berryman & Anor v Robert Sonnenschein & Anor [2008] NSWSC 213

HEARING DATE(S): 07/03/08

JUDGMENT DATE :
14 March 2008

JURISDICTION: Equity Division

JUDGMENT OF: Einstein J

DECISION: Matters of principle dealt with in reasons. Proceedings to be stood over for further address following the parties being given an opportunity to consider the reasons

CATCHWORDS: Real Property-Torrens Title - Easements - Right of carriageway - Dominant tenement owners seeking to co-join with the right of carriageway, a part of the land owned by them for the purpose of creating a turning or manoeuvring area, the right-of-way being insufficient in itself to permit the entirety of the manoeuvring area to be constructed - Proceedings for an order that the servient tenement owners sign a consent to the making of a development application to the Council for the making of alterations to the driveway constructed on the right-of-way - Proper construction of the easement - Practice and procedure - Overriding purpose rule

LEGISLATION CITED: Civil Procedure Act 2005 (NSW)
Conveyancing Act 1919 (NSW)
Conveyancing (Amendment) Act 1930 (NSW)
Environmental Planning and Assessment Act 1979 (NSW)
Environmental Planning Regulations
Local Government Act 1993 (NSW)
Real Property Act 1900 (NSW)
Supreme Court Act 1970 (NSW)
Water Management Act 2000 (NSW)

CATEGORY: Principal judgment

CASES CITED: 177 York Street Pty Ltd v Proprietors of Strata Plan 16123 (1998) 43 NSWLR 504
Butler v Muddle (1995) 6 BPR 13,984
Carlson v Carpenter (1998) NSW ConvR 55-848
Cameron North Sydney Investments Pty Ltd v Owners Strata Plan No 50411 [2002] NSWSC 726
Dunell v Phillips (1982) 2 BPR 9517
Jelbert v Davis [1968] 1 WLR 589
Jones v Pritchard [1908] 1 CH 630
Kirkjian v Towers (unreported, Supreme Court of New South Wales, Waddell J, 6 July 1987)
Krolczyk v Rafffan [1992] ANZ ConvR 228
Lehane v Jones (1982) NSW ConvR 55-079
Mulyan Pty Ltd v Cowra Shire Council (1999) 105 LGERA 26; [1999] NSWLEC 212
Natva Developments Pty Ltd v McDonald Bros Pty Ltd [2004] NSWSC 777
Neighbourhood Association DP No 285220 v Moffat [2008] NSWSC 54
Pettey v Parsons [1914] 2 Ch 653
Saggers v Brown (1982) NSW ConvR 55-054
Sertari Pty Ltd v Nirimba Developments Pty Ltd [2007] NSWCA 324
Spear v Rowlett [1924] NZLR 801
Timpar Nominees Pty Ltd v Archer [2001] WASCA 430
Todrick v Western National Omnibus [1934] Ch 190; [1934] 1 Ch 561
Trewin v Felton [2007] NSWSC 851
Westfield Management Ltd v Perpetual Trustee Co Ltd [2007] HCA 45
Williams v James (1867) LR 2 CP 577
Zenere v Leate (1980) 1 BPR 9300

PARTIES: Richard Frank Horton Berryman (First Plaintiff)
Kay Beverley Berryman (Second Plaintiff)
Robert Sonnenschein (First Defendant)
Susan Rowena Sonnenschein (Second Defendant)

FILE NUMBER(S): SC 1692/07

COUNSEL: Mr P Tomasetti SC (Plaintiffs)
Mr R Bellamy (Defendants)

SOLICITORS: Stephen Wawn & Associates (Plaintiffs)
Morgan Lewis (Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Einstein J

Friday 14 March 2008

1692/07 Richard Frank Horton Berryman v Robert Sonnenschein

JUDGMENT

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Berryman v Sonnenschein

Details

AGLC: Berryman v Sonnenschein [2008] NSWSC 213
Case: [2008] NSWSC 213
Decision Date: 14 March 2008

CaseChat Overview and Summary

The case of Berryman v Sonnenschein involved the owners of two adjacent properties, each claiming rights under a registered easement of carriageway. The dominant tenement owners sought to co-join their right of carriageway with a part of their land to create a turning or manoeuvring area. They argued that the existing right-of-way was insufficient to permit the entirety of the manoeuvring area to be constructed, and sought an order that the servient tenement owners sign a consent to the making of a development application to the Council for alterations to the driveway. The court had to determine whether the dominant tenement owners' proposed use of the easement exceeded the scope of the easement as it was properly construed and whether the overriding purpose rule applied.

The primary legal issue was whether the dominant tenement owners could expand the use of the easement beyond its original scope as described in the registered title. The court had to interpret the easement to determine its proper construction and whether the proposed use fell within its scope. The overriding purpose rule was also considered, which holds that if the dominant tenement owner seeks to use the easement for a purpose not within its scope, they must obtain the consent of the servient tenement owner. The court had to determine if the proposed use of the easement constituted an expansion of its scope or if it was a reasonable use within the easement's scope.

The court found that the easement did not permit the dominant tenement owners to co-join their land with the right of carriageway to create a turning or manoeuvring area. The court held that the easement's scope was limited to the right of carriageway and did not include the creation of a manoeuvring area. The proposed use of the easement exceeded its scope, and the dominant tenement owners needed the consent of the servient tenement owners to make alterations to the driveway. The court also found that the overriding purpose rule applied, and the dominant tenement owners could not use the easement for a purpose not within its scope without the consent of the servient tenement owners. The court refused the dominant tenement owners' application for an order that the servient tenement owners sign a consent to the making of a development application.

The final orders of the court were that the dominant tenement owners' application be dismissed with costs. The court held that the proposed use of the easement exceeded its scope and that the overriding purpose rule applied. The dominant tenement owners were required to obtain the consent of the servient tenement owners to make alterations to the driveway. The court's decision highlights the importance of carefully considering the scope of an easement and obtaining consent from the servient tenement owner before expanding its use beyond its original scope.

Orders