Campbell v Hamilton

The appellant, Mr. Campbell, and the respondent, Mr. Hamilton, were parties to a dispute concerning an easement. Mr. Campbell had granted an easement to Mr. Hamilton over a portion of his land. The central issue was whether this grant was effective to bind Mr. Campbell's successors in title, particularly in light of section 88(1) of the *Conveyancing Act 1919* (NSW), which requires an instrument to "clearly indicate" the land to which an easement is appurtenant. The case was heard in the Court of Appeal of New South Wales.

The Court of Appeal was required to determine two primary legal issues. Firstly, whether the instrument granting the easement sufficiently indicated the land to which it was appurtenant for the purposes of section 88(1) of the *Conveyancing Act 1919* (NSW), thereby binding successors in title. Secondly, the Court considered whether extrinsic evidence could be used to construe the deed providing for the grant of the easement, especially if such evidence was not admissible to construe the registered instrument itself. The Court also considered the appellant's agreement to grant the easement and the meaning of "easement" in this context.

The Court of Appeal found that while the registered instrument itself did not clearly indicate the land to which the easement was appurtenant, the underlying deed did. The Court held that the deed, which preceded the registration of the easement, was the operative instrument for the purpose of determining the intention of the parties and the scope of the easement. Therefore, the easement was validly created and bound Mr. Campbell's successors in title. The Court allowed the appeal in part, setting aside a declaration made on 4 June 2018, but otherwise dismissed the appeal, ordering Mr. Campbell to pay Mr. Hamilton's costs.