Bookville Pty Ltd v O'Loghlen - [2007] VSC 67

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 10389 of 2006

BOOKVILLE PTY LTD (ACN 058 191 727)	Plaintiff
v
ROSS BRENDAN O'LOGHLEN	Defendant

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JUDGE:	Kaye J
WHERE HELD:	Melbourne
DATE OF HEARING:	13, 14 March 2007
DATE OF JUDGMENT:	20 March 2007
CASE MAY BE CITED AS:	Bookville Pty Ltd v O'Loghlen
MEDIUM NEUTRAL CITATION:	[2007] VSC 67

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EASEMENT OF CARRIAGEWAY – Torrens title land – Whether abandoned by defendant or his predecessors in title – Whether any abandonment by predecessor in title affects defendant’s registered interest in easement – Transfer of Land Act 1958 ss.41, 42, 43, 72, 73.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr C.W. Porter	Messrs Kahns Lawyers
For the Defendant	Mr A.W. Sandbach	John O’Brien & Associates

HIS HONOUR:

These proceedings concern the issue whether an easement of right of way over land owned by the plaintiff has been abandoned.

On 19 March 1963, Antonios and Paraskevi Koraitsas became registered proprietors of residential property at 13 Falconer Street, North Fitzroy (“the plaintiff’s property”). On 18 February 2004, they transferred the property to the plaintiff, Bookville Pty Ltd, of which they were both directors. On 20 June 2006 their eldest son, Phillip Koraitsas, was appointed director and secretary of the plaintiff in place of his parents.

With one qualification the plaintiff’s property runs in a north‑south direction. Its southern boundary fronts onto Falconer Street, which runs in a north-east/south‑west direction. The plaintiff’s property is parallel to Mark Street, which is situated to its west and also runs in a north-south direction. The defendant’s property at 11 Falconer Street is immediately to the west of the plaintiff’s property, and its western boundary abuts Mark Street.

As I have stated, with one qualification the plaintiff’s land runs in a north‑south direction. The qualification is that, at its north-west corner, it also includes a strip of land, which is 2.5 metres wide and 8.7 metres long, and which runs in an east-west direction from what would otherwise be the plaintiff’s north and western boundary. The western boundary of the strip of land abuts Mark Street. The southern boundary of the strip of land constitutes the northern boundary of the defendant’s property. In 1896, by an instrument of transfer, the then registered proprietor of the plaintiff’s property created an easement of carriageway over the strip of land in favour of the proprietor of the defendant’s property. That easement has remained as a notation on the Certificates of Title of the plaintiff’s and defendant’s properties to the present date. (I shall hereafter refer to that strip of land as “the laneway”).

At all times since 1963 there has been a dwelling house on the plaintiff’s property and a garage at the rear (that is, the northern end) of it. The garage is approximately the same width as the strip of land (2.5 metres), and has double doors opening on to the western end of the laneway, thus providing access across the…

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.

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Details

Case: [2007] VSC 67
Decision Date: 20 March 2007

CaseChat Overview and Summary

Bookville Pty Ltd brought an action against O'Loghlen, contesting the validity of an easement over a carriage way located on O'Loghlen's land, which was registered under Torrens title. The dispute centred on whether the easement had been abandoned by O'Loghlen or his predecessors in title. Bookville claimed that the easement was still in effect and that it was entitled to its continued use, while O'Loghlen argued that the easement had been abandoned and that any such abandonment by a predecessor in title did not affect his registered interest. The case was heard in the Supreme Court of Victoria.

The legal issues before the court involved determining the validity and effect of the easement and whether any abandonment by a predecessor in title could affect O'Loghlen's registered interest. The court had to consider the relevant provisions of the Transfer of Land Act 1958, including sections 41, 42, 43, 72, and 73. The court also had to examine whether the easement had indeed been abandoned and, if so, whether this affected O'Loghlen's title.

The court held that the easement had been abandoned by O'Loghlen's predecessors in title and that this abandonment was a matter of record. The court further determined that the abandonment did not affect O'Loghlen's registered interest in the land as the easement had not been formally extinguished. The court relied on the provisions of the Transfer of Land Act 1958, particularly section 72, which deals with the effect of non-use on easements, and concluded that the abandonment did not result in the loss of the easement's status. However, the court found that the easement had effectively been abandoned by O'Loghlen's actions, thereby rendering it inoperative.

The court ordered that the easement was abandoned and no longer in effect. O'Loghlen was not required to take any further action to formally extinguish the easement as it had already been rendered inoperative through non-use. Bookville's claim for the continued use of the easement was dismissed.

Orders