Cantelo v Kapellides
[2003] VSC 442
•14 November 2003
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PRACTICE COURT
No. 7800 of 2003
| ROSS ADAM CANTELO AND DIANNE VERA CANTELO | Plaintiffs |
| V | |
| DIMETRIUS KAPELLIDES | Defendant |
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JUDGE: | BYRNE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 October 2003 | |
DATE OF JUDGMENT: | 14 November 2003 | |
CASE MAY BE CITED AS: | Cantelo v Kapellides | |
MEDIUM NEUTRAL CITATION: | [2003] VSC 442 | |
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Real Property – Easement – Whether agreement creates easement – Whether transferee of grantor takes title to servient tenement subject to unregistered easement.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mrs J. Tooher | Andma Legal Pty Ltd |
| For the Defendant | Mr G.A. Hardy | AC Constantinou |
HIS HONOUR:
Plan of Subdivision No. 044949 includes three lots, Lots 2, 3 and 4, which are at the north east corner of Middleborough Road and Ely Road, Blackburn South where Middleborough Road runs north-south. These three lots are known as Nos. 104, 106 and 108 Middleborough Road respectively.
On 19 November 2002 the registered proprietors of Lot 3, (No. 106 Middleborough Road) were Neville James Sturzaker and Zenaida Paras Sturzaker, the predecessors in title of the defendant Dimetrius Kapellides. This is the land more particularly described in certificate of title volume 8321 folio 066.
The land immediately to the north of this lot, Lot 4 (No. 108 Middleborough Road) was then and still is owned by the plaintiffs Ross Adam Cantelo and Dianne Vera Cantelo. This is the land more particularly described in certificate of title volume 8455 folio 251. The title shows that the Cantelos became registered as proprietors on 11 August 2002.
On 19 November 2002 the Sturzakers as grantors executed an agreement with the Cantelos as grantees whereby they granted to the Cantelos an easement of carriageway over a strip of land 11 feet, 11 inches wide abutting the rear or west boundary of their land and extending for its width. In this proceeding the Cantelos seek declaratory relief as to the existence of this easement so that it may be registered on the title of Mr Kapellides' land.
The agreement is in these terms:
"AGREEMENT FOR RIGHT OF WAY
The grantor being registered as the proprietor of an estate in fee simple in the servient land subject to the encumbrances affecting the said land including any created by dealings lodged for registration prior to this instrument for the consideration expressed transfers and grants to the grantee and his transferees the registered proprietor for the time being of the dominant land the right of way specified."
Then follows a description of each of the dominant and servient land by reference to its Certificate of Title volume and folio numbers and a description of the grantors and the grantees. Then, above the date and signatures of the parties, appears the following:
"Estate In fee simple.
Consideration: $1.00
Right of Way: A right of carriageway over the land delineated and coloured red on the map attached hereto and being part of Certificate of Title Volume 8321 Folio 066.
Special Conditions: 1. The grantees agree that the fences on the northern boundary of the dominant land are not to be removed and are to be maintained in a proper and workmanlike manner.
2. The grantees agree that this easement is appurtenant to the dominant land only and that no benefit will enure to the benefit of any other land arising from the consolidation of any Titles.
3. If the grantees breach the aforesaid Special Conditions then this Agreement shall be terminated."
This easement was never registered on the title of the servient land.
The certificate of title for No. 106 Middleborough Road, the servient land, shows that Mr Kapellides became registered as proprietor on 7 August 2003. In his affidavit sworn on 6 October 2003, Mr Kapellides deposed that, in March 2003, he was interested in purchasing No. 108 Middleborough Road but that he did not proceed because he and his solicitor, Anthony Constantinou, were told by the selling agent, Mario Nobrega of Di Baker Real Estate, and by John Powell, the solicitor acting for the vendor, that the Sturzakers had refused to execute an easement over No. 106 Middleborough Road, preferring to grant only a right of way licence over their land. Given this attitude, Mr Kapellides shifted his interest to No. 106 Middleborough Road and purchased it from the Sturzakers. Mr Constantinou in his affidavit sworn on 9 October 2003 confirmed the accuracy of this, insofar as it concerned him.
Not surprisingly, there was some contest as to the admissibility of this evidence, but the objection was not persisted with.
The first question is whether the agreement creates an easement. On behalf of the Cantelos it was put that it does as a matter of construction. The evidence of the intention or intent of the Sturzakers on this matter was, it was put, entirely irrelevant. Against this, it was argued, first, that this agreement was ineffective until registered on the title to the servient land; second, that the interest was not one in fee simple; and third, that special condition 3 shows that nothing more than a bare licence was granted.
I agree that this is essentially a matter of construction of the written document and that statements of the intention of the grantors are not relevant. The requirements for an easement are usefully set out in Riley v Pentilla[1]. These are all satisfied in the present case. There can be no doubt that there is a dominant and a servient tenement, that the right of way accommodates the dominant tenement and that the two tenements are held by different persons. The final requirement is that the right conferred must be capable of forming the subject matter of a grant. A right of carriageway is one known to the law. It was then put that, notwithstanding that the agreement uses the term "easement" to describe itself, this is not determinative. The precarious nature of the right is demonstrated by the provisions of special condition 3 that would terminate it if the special conditions 1 or 2 were breached. I do not see this to be an impediment. My attention was drawn to the operative words of the grant which are "transfers and grants" and that the grantee is to include "his transferees the registered proprietor for the time being of the dominant land". These are words suggestive of a grant to the Cantelos of an interest in the servient land.
[1][1974] VR 547 at 557, per Gillard J.
This leaves, then, the question whether the agreement is effective to create an interest in land without registration. This is a different question to that whether the transferee of the servient land takes free of the interest. It is well established that a provision such as s.40(1) of the Transfer of Land Act 1958 will not operate to exclude equitable rights which would otherwise be recognised by the law as effecting land.[2] In the case of the Victorian s.40(1), the provision is introduced by the words "subject to this Act". Section 72(2), which the Cantelos seek to invoke, proceeds on the basis that the easement has been created by an unregistered instrument, deed or written document or recognised by an award or court order.
[2]Barry v Heider (1914) 19 CLR 197. See too Nelson v Hughes [1947] VLR 227 at 230, per Lowe J.
I conclude, therefore, that the agreement of 19 November 2002 was effected to create an easement of way in equity in accordance with its terms.
The second question is whether the easement is such that it presently binds the servient land, given that the Mr Kapellides is a transferee of the grantors.
Reliance was placed on the statutory paramountcy of the title prescribed by s.42. But this, too, is subject to "any easements howsoever acquired subsisting over or upon or affecting the land."[3] These are words of very general import[4]. But, it was said, this is a reference to a legal easement, that is, one which is registered and therefore effectual to grant to the dominant landholder the interest in question.[5] This submission derives support from certain text.[6] It is, however, contradicted by the advice of the Privy Council in James v Stevenson[7] which opinion binds me. The qualification upon the estate of a registered proprietor created by s.42(2)(d) includes the interest of a dominant tenant under an unregistered agreement to create an easement.
[3]Section 42(2)(d).
[4]Nelson v Hughes [1947] VLR 227 at 230, per Lowe J.
[5]See s. 40(1).
[6]Robinson: Transfer of Land in Victoria (1979) at p. 195. But contrast Voumard, The Sale of Land (1995) at p. 292; and Bradbrook & Neave, Easements and Restrictive Covenants in Australia (2000) at p. 250-3.
[7][1893] AC 162.
I conclude from this that an easement of way has been created by the agreement of 19 November 2002 over the land owned by Mr Kapellides. I propose therefore that there should be a declaration to that effect in terms appropriate to enable the Cantelos to seek to have the easement notified pursuant to s.72(2) of the Transfer of Land Act 1958 on certificate of title volume 8321 folio 066.
I will hear counsel as to the terms of this declaration and as to costs.
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