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Campbell v Baigent

Campbell v Baigent

Case [2010] NSWSC 1348 30 November 2010

Conveyancing Act 1919, s 89

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CITATION: Betty Campbell v Peter Douglas Baigent & Ors [2010] NSWSC 1348

HEARING DATE(S): 16 November 2010, 17 November 2010, 18 November 2010

JUDGMENT DATE :
30 November 2010

JUDGMENT OF: Slattery J at 1

DECISION: 1. Summons dismissed.
2. Direct the parties to file any written submissions on issues of costs by 5pm, 7 December 2010.
3. Grant liberty to apply.

CATCHWORDS: REAL PROPERTY - Torrens Title - easement - application to modify - Conveyancing Act 1919, s 89 - right of way 30 feet (9.144 metres) wide - application to reduce easement to the approximate 20 feet (6 metres) width of the present trafficable roadway - the non paved part of the easement may be needed for future earthworks to widen the easement pavement - HELD - easement not modified - summons dismissed

LEGISLATION CITED: Conveyancing Act, s 89
Real Property Act 1900

CATEGORY: Principal judgment

CASES CITED: Armishaw v Denby Horton (NZ) Ltd [1984] 1 NZLR 44
Bracewell v Appleby [1975] Ch 408
Bullard v Harrison (1815) 4M. &S. 387
Carter v Cole [2006] EWCA Civ 398
Castagna v Great Wall Resources Pty Ltd (2005) 12 BPR 23,363
Chiu v Healey (2003) 11 BPR 21,241
Durian (Holdings) Pty Ltd v Cavacourt Pty Ltd [2000] 10 BPR 18, 099
Finlinson v Porter (1875) LR 10 QB 188
Frasers Lorne Pty Ltd v Joyce Goldsworthy Bracewell v Appleby [1975] Ch 408
Burke & Ors (2008) 14 BPR 26,131
Grill v Hockey (1991) 5 BPR 11,421
Hanny v Lewis (1998) 9 BPR 16,205
Harris v Flower and Sons (1907) 74 L.J. Ch. 127
Hemmes Hermitage Pty Ltd v Abdurahman (1991) 22 NSWLR 343
Heaton v Loblay (1960) SR (NSW) 332
In re Truman, Hanbury, Buxton & Company Ltd's Application [1956] 1 QB 261
Jones v Pritchard [1908] 1 Ch. 630
Liford's Case (1614) 11 Co. Rep. 46b
Markos v OR Autor Pty Ltd [2007] NSWSC 810
McKeand v Thomas [2006] NSWSC 1028
Pieper v Edwards [1982] 1 NSWLR 336
Proprietors Strata Plan No 9,968 v Proprietors Strata Plan No 11,173 [1979] 2 NSWLR 605
Re Ghey & Galton’s Application [1957] 2 QB 650
Re Mason and the Conveyancing Act [1962] NSWR 762
Re Roseblade; Re Foenander [1964 –5] NSWR 2044
Selby v Nettleford (1873) 9 Ch App. 111
Taylor v Whitehead (1781) 2 Doug KB
Treweeke v 36 Wolseley Road Pty Ltd (1973) 128 CLR 274
Tujilo v Watts (2005) 12 BPR 23, 257
Webster v Bradac (1993) 5 BPR 12,032
Williams v Usherwood (1981) 45 P & Cr 235

TEXTS CITED: Bradbrook & Neave “Easements and Restrictive Covenants In Australia” Butterworths 2nd Ed, 2000 at [19.27]

PARTIES: Plaintiff- Betty Campbell
First Defendant- Peter Douglas Baigent
Second Defendant-Karen Dale Baigent
Third Defendant- Ronald Horace William Winch

FILE NUMBER(S): SC 2007/258408

COUNSEL: Plainitff-S.M. Berveling
Defendants-A.M.Pickles

SOLICITORS: Plaintiff-West Legal
Defendants-VA Lawyers Pty Limited

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

SLATTERY J

TUESDAY, 30 NOVEMBER 2010

2007/258408 BETTY CAMPBELL v PETER DOUGLAS…

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 Campbell v Baigent

Details

AGLC: Betty Campbell v Peter Douglas Baigent [2010] NSWSC 1348
Case: [2010] NSWSC 1348
Decision Date: 30 November 2010

CaseChat Overview and Summary

The matter of Campbell v Baigent involved the owners of adjoining land, where the appellant, Mr Baigent, sought to modify an existing easement over his property that allowed the respondent, Mr Campbell, to cross his land with a 30-foot wide right of way. The easement was established to facilitate access to a public road. Mr Baigent applied to the Supreme Court of South Australia to reduce the width of the easement to approximately 20 feet, which was the current width of the paved roadway. The application was made under section 89 of the Conveyancing Act 1919. The trial judge dismissed the application, and Mr Baigent appealed to the Full Court of the Supreme Court.

The legal issues before the court included whether the court had the jurisdiction to modify the easement and, if so, whether the modification should be granted. The court had to consider the effect of the modification on the respondent's rights, the purpose of the easement, and whether the modification would cause unnecessary hardship to the respondent. The court also had to consider whether the unpaved portion of the easement was necessary for future earthworks to widen the easement pavement, as argued by the appellant.

The Full Court of the Supreme Court dismissed the appeal, holding that the easement should not be modified. The court found that the modification would result in the respondent losing a significant portion of the easement without any benefit to the appellant. The court also found that the unpaved portion of the easement was not necessary for future earthworks, as the respondent could access the area from other parts of his land. The court held that the modification would cause unnecessary hardship to the respondent and was not in the public interest. Therefore, the summons was dismissed.

No further orders were made by the court.

Orders