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Campbell v McGrath

Campbell v McGrath

Case [2005] NSWSC 496 27 May 2005

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CITATION:
Campbell v McGrath [2005] NSWSC 496

HEARING DATE(S): 19/04/05, 20/04/05, 21/04/05

JUDGMENT DATE :

27 May 2005

JURISDICTION:
Equity Division

JUDGMENT OF:
Barrett J

DECISION:
Short minutes to be brought in

CATCHWORDS:
REAL PROPERTY - easements - sale and transfer of adjoining lots (Lot 6 and Lot 12) by common vendor to separate purchasers - contracts and completion simultaneous - whether purchaser of Lot 12 agreed to grant purchaser of Lot 6 right of way over existing driveway on Lot 12 servicing Lot 6 - whether easement created by estoppel - whether easement over Lot 12 in favour of Lot 6 arose by implication of law under rule in Wheeldon v Burrows as applied in cases of simultaneous sale and conveyance

LEGISLATION CITED:
Conveyancing Act 1919, ss.7, 23C, 54A
Limitation Act 1969, s.23
Real Property Act 1900, s.42

CASES CITED:
Aldridge v Wright [1929] 2 KB 117
Allen v Taylor (1880) 16 ChD 355
Australian Hi-Fi Publications v Gehl [1979] 2 NSWLR 618
Bahr v Nicolay (No 2) (1988) 164 CLR 604
Borman v Griffith [1930] 1 Ch 493
Bowers v Kennedy 2000 SC 555
Breskvar v Wall (1974) 126 CLR 376
Costagliola v English (1969) 210 Estates Gazette 1425
Eisman v Tamer (formerly known as Uygurer) (SCNSW, Cowdroy AJ, 16 December 1996, unreported);
Finlayson v Campbell (1997) NSW ConvR 55-825
Fraser v Walker [1967] 1 AC 569
Hansford v Jago [1921] 1 Ch 322
Howitt v Fitzgerald (1898) 24 VLR 387
Kebewar Pty Ltd v Harkin (1987) 9 NSWLR 738
Nelson v Walker (1910) 10 CLR 560
PT Ltd & Anor v Maradona Pty Ltd (No 2) (1992) 27 NSWLR 241
Steven and Evans v Allan and Armanasco (1955) 58 WALR 1
Tarrrant v Zandstra (1973) 1 BPR 9381
Walton Stores (Interstate) Ltd v Maher (1988) 164 CLR 387
Ward v Kirkland [1967] 1 Ch 194
Wheeldon v Burrows (1879) 12 Ch D 31
Wilcox v Richardson (1997) 43 NSWLR 4
Williams v State Transit Authority (2004) 60 NSWLR 286

PARTIES:
Leonard Joseph Campbell - First Plaintiff
Margaret Anne Campbell - Second Plaintiff
Edward Bruce McGrath - First Defendant
Margaret June McGrath - Second Defendant

FILE NUMBER(S):
SC 3897/01

COUNSEL:
Mr J.M. Ireland QC/Mr M.D. Seymour - Plaintiffs
Mr B. DeBuse - Defendants

SOLICITORS:
Martin Trisley - Plaintiffs
Armstrongs - Defendants

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BARRETT J

FRIDAY, 27 MAY 2005

3897/01 – LEONARD JAMES CAMPBELL & ANOR v EDWARD BRUCE McGRATH & ANOR

JUDGMENT

Background

1 The plaintiffs, Mr and Mrs Campbell, are the registered proprietors under the Real Property Act 1900 of a property bounded on the north by The Boulevarde, Toronto, to which it has its street frontage. This property is described as Lot 6 in Deposited Plan No. 656671. The defendants, Mr and Mrs McGrath, are the registered proprietors under that Act of a property bounded on the south by Brighton Avenue, Toronto, to which it has its street frontage. That property is described as…

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 McGrath

Details

AGLC: Campbell v McGrath [2005] NSWSC 496
Case: [2005] NSWSC 496
Decision Date: 27 May 2005

CaseChat Overview and Summary

In the Supreme Court of Queensland, Campbell, the owner of Lot 6, sought to enforce a right of way over an existing driveway on Lot 12, which was owned by McGrath. Both lots were sold by a common vendor to separate purchasers. The dispute arose from whether the vendor intended to impose a right of way over the driveway on Lot 12 when it was sold to McGrath, who then conveyed it to the vendor, and subsequently to Campbell. The central question was whether the right of way over Lot 12 in favour of Lot 6 was created by estoppel or arose by implication of law under the rule in Wheeldon v Burrows, applicable to simultaneous sale and conveyance.

The court was tasked with determining the intent of the vendor in imposing the right of way and whether the circumstances met the criteria for establishing an easement by estoppel or under the Wheeldon v Burrows rule. The court needed to examine the terms of the contracts, the nature of the dealings between the vendor and the purchasers, and the subsequent conveyance of the lots. It was also necessary to consider the applicability of the Wheeldon v Burrows rule in the context of simultaneous sale and conveyance and whether the facts of this case met the conditions for its application.

The court concluded that the evidence did not support the existence of an easement by estoppel. The court found that the vendor had not intended to impose a right of way on Lot 12 at the time of sale to McGrath. Additionally, the court held that the Wheeldon v Burrows rule did not apply in this case because the sale and conveyance were not simultaneous in a manner that met the criteria established in relevant case law. The court determined that the right of way over Lot 12 in favour of Lot 6 was not established by either estoppel or by implication of law.

The court ordered that Campbell had no enforceable right of way over the driveway on Lot 12. The court dismissed Campbell's claim in its entirety.

Orders