Byrne v Palmer - [2024] QSC 46

SUPREME COURT OF QUEENSLAND

CITATION: Byrne v Palmer [2024] QSC 46

PARTIES:
STEPHEN TREVOR BYRNE AND JANE CHRISTINE BYRNE

(applicants)
v

TERRENCE ALFRED PALMER AND MURIEL LINDA PALMER

(respondents)

FILENO/S: BS No 7909 of 2023

DIVISION: Trial Division

PROCEEDING: Application

ORIGINATING COURT: Supreme Court of Brisbane

DELIVEREDON: 22 March 2024

DELIVEREDAT: Brisbane

HEARINGDATE: 12 December 2023; 15 February 2024

JUDGE: Crowley J

ORDER:
1. The application for relief pursuant to s 196 of the

Property Law Act 1974 (Qld) is granted.

2. The applicants and respondents are to prepare a minute of the orders necessary to give effect to my reasons for granting the relief under s 197 of the Property Law Act 1974 (Qld).

3. The application in respect of the alternative relief sought is dismissed.

CATCHWORDS:
REAL PROPERTY – BOUNDARIES OF LAND AND

FENCING – where the parties own adjoining properties with shared boundaries – where the parties are not connected to the mains water supply – where there was an agreement for shared ownership and benefit of the water bore to be sunk on the shared boundary – where a water bore was sunk wholly on the land of the respondent – where there was a mistake in where the bore was sunk – where the mistake was not known until recently – where owners of both adjoining properties jointly made lasting improvements to the water bore – where there was shared use of the water bore for nearly 40 years –

whether the applicant is entitled to a property vesting order under s 197 of the Property Law Act 1974 (Qld).

REAL PROPERTY – EASEMENTS – EASEMENTS

GENERALLY – CREATION – where the respondents purchased the property in 1991 – where the respondents are the registered proprietors of a lot with a fee simple interest in the land – where the easement was not in existence when the respondent’s lot was first registered – where the easement particulars have never been recorded in the freehold land register against the lot – where the applicant uses their property as a family holiday home and short-term holiday rental – where there may be alternative water sources available to the applicant – where the bore is used primarily to water the garden and for outdoor purposes – whether the applicant should have a statutory right of user to access and use the respondent’s bore or have acquired an easement by prescription through long user.

Acts Interpretation Act 1954 (Qld), s 14A(1), s 32C

Land Title Act 1994 (Qld), s 184, s 185(1)(c), s 185(3) s 200,
s 201

Property Law Act 1974 (Qld), s 180, s180(1), s180(3), s 196, s 197, s 198, s 198A

Water Act 2000 (Qld), s 27, s 101(1)(c), s 1046

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, cited

Connellan Nominees Pty Ltd v Camerer [1988] 2 Qd R 248, considered
Delohery v Permanent Trustee Co of New South Wales Ltd

(1904) 1 CLR 289, cited

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 Byrne v Palmer

Details

AGLC: Byrne v Palmer [2024] QSC 46
Case: [2024] QSC 46
Decision Date: 22 March 2024

CaseChat Overview and Summary

In Byrne v Palmer, the Supreme Court of Queensland addressed a dispute between adjoining property owners regarding the boundaries of their properties and the shared ownership and use of a water bore. The applicants, the Byrnes, and the respondents, the Palmers, owned properties that shared a boundary. They agreed to sink a water bore on this shared boundary for their mutual benefit. However, the bore was mistakenly sunk entirely on the Palmers' property. Despite this error, both parties made lasting improvements to the bore and shared its use for nearly 40 years.

The legal issues before the court involved whether the shared use and improvements constituted an agreement for the bore to be on the boundary line, and whether this shared use amounted to a binding agreement. The court had to determine if the mistake in the bore's location could be rectified under the relevant legislation and whether the applicants were entitled to relief under the Property Law Act 1974 (Qld).

The court held that the shared use and improvements to the bore indicated an agreement for its location on the boundary line. Despite the initial mistake, the conduct of the parties over many years demonstrated a shared understanding and acceptance of the bore's location. The court found that the applicants were entitled to relief under section 196 of the Property Law Act 1974 (Qld), and the application for relief was granted. The court dismissed the application for alternative relief.

The final orders of the court required the parties to prepare a minute of the orders necessary to give effect to the court's reasons for granting the relief under section 197 of the Property Law Act 1974 (Qld). The application for alternative relief was dismissed.

Orders

Orders of the court

1. The application for relief pursuant to s 196 of the

Property Law Act 1974 (Qld) is granted.

2. The applicants and respondents are to prepare a minute of the orders necessary to give effect to my reasons for granting the relief under s 197 of the Property Law Act 1974 (Qld).

3. The application in respect of the alternative relief sought is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Byrne v Palmer [2024] QSC 46
PARTIES:	STEPHEN TREVOR BYRNE AND JANE CHRISTINE BYRNE (applicants) v TERRENCE ALFRED PALMER AND MURIEL LINDA PALMER (respondents)
FILENO/S:	BS No 7909 of 2023
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court of Brisbane
DELIVEREDON:	22 March 2024
DELIVEREDAT:	Brisbane
HEARINGDATE:	12 December 2023; 15 February 2024
JUDGE:	Crowley J
ORDER:	1. The application for relief pursuant to s 196 of the *Property Law Act 1974* (Qld) is granted. *2. The applicants and respondents are to prepare a minute of the orders necessary to give effect to my reasons for granting the relief under s 197 of the Property Law Act 1974* (Qld). 3. The application in respect of the alternative relief sought is dismissed.**
CATCHWORDS:	REAL PROPERTY – BOUNDARIES OF LAND AND FENCING – where the parties own adjoining properties with shared boundaries – where the parties are not connected to the mains water supply – where there was an agreement for shared ownership and benefit of the water bore to be sunk on the shared boundary – where a water bore was sunk wholly on the land of the respondent – where there was a mistake in where the bore was sunk – where the mistake was not known until recently – where owners of both adjoining properties jointly made lasting improvements to the water bore – where there was shared use of the water bore for nearly 40 years – whether the applicant is entitled to a property vesting order under s 197 of the Property Law Act 1974 (Qld).