Biki v Chessells - [2002] VSC 501

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION

No. 6858 of 2000

JANKO BIKI and JANKO BIKI (who sues as the Executor of the Estate of OLENA BIKI)	Plaintiff
v
GRAEME WILLIAM CHESSELLS and THE REGISTRAR OF TITLES	Defendants

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JUDGE:	Byrne J
WHERE HELD:	Melbourne
DATE OF HEARING:	6, 7 and 11 November 2002
DATE OF JUDGMENT:	22 November 2002
CASE MAY BE CITED AS:	Biki v Chessells
MEDIUM NEUTRAL CITATION:	[2002] VSC 501

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Easements – water supply easement – secondary right to enter upon servient tenement to carry out repairs to water channel – whether inconsistent with express terms of grant of easement permitting dominant tenement to carry out such work within the easement.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr P.N. Wikrama	Cassidys Morrison & Teare
For the Firstnamed Defendant	Mr R.H.M. Attiwill	Camerons Lawyers
For the Secondnamed Defendant	No appearance

HIS HONOUR:

Relations between neighbouring land holders are usually characterised by a certain give and take, and differences between them by reasonable compromise. This is even more so in rural areas where the areas of land are larger and neighbours often need to work together to prosper, or even to survive. Where this spirit is lacking, their rights and obligations must be determined by the rigorous application of principles of law. The parties presently before the Court have the misfortune to find themselves in this position in their disputes over the plaintiff’s exercise of easement rights to convey water over the firstnamed defendant’s land.

The properties in question are situated in the irrigation district near Shepparton. In the 1980s, one Douglas John Chessells, the brother of the firstnamed defendant, Graeme William Chessells, was the owner of a 108.9 hectare block of land fronting the northern side of Invergordon Road, Invergordon. This was Lot 2 on Plan of Subdivision No. 77655 and the land more particularly described in Certificate of Title Volume 9221 Folio 826. This land is the dominant tenement, the relevant part of which is shown coloured yellow on the attached plan marked “A” which forms part of this judgment.

To the south of Invergordon Road opposite the dominant tenement lay Lot 1 on the same plan of subdivision, also owned by Mr D.J. Chessells. This allotment was in 1986 subdivided. The new subdivision, Plan of Subdivision 205342U, contains five allotments of varying sizes. Lot 1 on this plan of subdivision comprising 27.86 hectares has a frontage to Invergordon Road opposite the dominant tenement. This lot is the servient tenement. The certificate of title for the servient tenement, Certificate of Title 9714 Folio 220, shows a water supply easement which is at the heart of this litigation. The servient tenement is shown coloured green, black, orange and pink on the attached plan.

The issue before the Court is whether the grant of this easement carries with it the right in the present owner of the dominant tenement to enter upon the servient tenement, other than the 10…

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 Biki v Chessells

Details

AGLC: Biki v Chessells [2002] VSC 501
Case: [2002] VSC 501
Decision Date: 22 November 2002

CaseChat Overview and Summary

Biki v Chessells was a case heard in the Supreme Court of Victoria. The dispute arose between the owners of two adjoining properties, where the dominant tenement held an easement for a water supply channel running across the servient tenement. The crux of the issue was whether the dominant tenement owner could exercise a secondary right to enter the servient tenement for the purpose of repairing the water channel, despite the express terms of the easement allowing only the dominant tenement owner to perform such work within the easement itself.

The legal issues before the court involved interpreting the terms of the easement and determining whether the secondary right to enter the servient tenement for repairs constituted an inconsistency with the express terms of the grant. The court had to consider whether the dominant tenement owner's right to repair the water channel could be exercised in a manner that required entering the servient tenement, or if it was strictly limited to activities within the easement area as stipulated.

The court found that the express terms of the easement did not preclude the dominant tenement owner from entering the servient tenement for the purpose of repairing the water channel. The court reasoned that the easement's primary purpose was the maintenance and operation of the water supply, and permitting necessary repairs, even if they required entry onto the servient tenement, was essential to fulfilling this purpose. The court concluded that such an entry was not inconsistent with the terms of the easement, as long as it was reasonably necessary for the repair and maintenance of the water channel.

The Supreme Court of Victoria held that the dominant tenement owner had the right to enter the servient tenement to carry out repairs to the water channel, provided that the entry was reasonable and necessary for the maintenance of the easement. The court's decision emphasised the importance of interpreting easements in a way that ensures their effective use and maintenance, without strictly limiting the dominant tenement owner's ability to perform necessary repairs.

Orders