Castagna v Great Wall Resources Pty Ltd - [2005] NSWSC 942

Reported Decision:
(2006) NSW ConvR 56-148

New South Wales

Supreme Court

CITATION:
Castagna v Great Wall Resources Pty Ltd [2005] NSWSC 942

HEARING DATE(S): 10, 11 May 2005; 1 September 2005

JUDGMENT DATE :

20 September 2005

JURISDICTION:
Equity Division

JUDGMENT OF:
Young CJ in Eq

DECISION:
Easement partially extinguished.

CATCHWORDS:
REAL PROPERTY [436]- Easements- Extinguishment or modification of right of way- Right of way on title since 1921- Semi-rural farmland- Right of way gives access to main road- Not used in long time- New public roads built giving alternate access to main road- Part of right of way no longer needed- Substantial improvements needed for right of way to be used for intended purpose- Whether new roads establish change in neighbourhood- Whether difficult test of abandonment overcome- Whether any reasonable use of servient tenement possible without extinguishment or modification- Whether substantial injury to person benefiting from easement if modified or extinguished- Easement partially extinguished.

LEGISLATION CITED:
Conveyancing Act 1919, s 89(1), 181A
Real Property Act 1900, s 49
Transfer of Land Act 1893 (WA) s 129C

CASES CITED:
Coles Myer NSW Ltd v Dymocks Book Arcarde Ltd (1996) 9 BPR 16,939
Gotobed v Pridmore (1970) 115 Sol Jo 78
Grill v Hockey (1991) 5 BPR 11,421
Heaton v Loblay (1959) 60 SR (NSW) 332
James v Stevenson [1893] AC 162
Morpath Pty Ltd v ACT Youth Accommodation Group Inc (1987) 16 FCR 325
Oleander Nominees Pty Ltd v Owners of Lakeside Villas SP 14025 (Hasluck J, 8.11.02 unreported, BC 2002 06653)
Re Henderson's Conveyance [1940] Ch 835
Stannard v Issa [1987] AC 175
Straven Services Ltd v Waimairi County [1966] NZLR 996
Swan v Sinclair [1925] AC 227
Treweeke v 36 Wolseley Road Pty Ltd (1973) 128 CLR 274
Tujilo v Watts [2005] NSWSC 209
TZ Developments Pty Ltd v Rickman Pty Ltd (1993) 7 BPR 14,605
Wall v Australian Real Estate Investment Co Ltd [1978] WAR 187

PARTIES:
Paolo Castagna and Adelina Castagna (P)
Great Wall Resources Pty Limited (D)

FILE NUMBER(S):
SC 6247/03

COUNSEL:
D M Loewenstein (P)
M Ashhurst (D)

SOLICITORS:
Hansons (P)
Dribbus Kovacevic (D)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

YOUNG CJ in EQ

Tuesday 20 September 2005

6247/03 – CASTAGNA v GREAT WALL RESOURCES PTY LTD

JUDGMENT

1 HIS HONOUR: The plaintiffs say that they have a registered easement appurtenant to their land at Yallah over the defendant's land. The defendant says that that easement should not have been registered, or if it has been properly registered, it should be extinguished.

2 The dispute came to a head when the defendant asked the Registrar General to write off the easement under s 49 of the Real Property Act 1900. The plaintiffs protested. The Registrar General advised the plaintiffs to lodge a caveat to protect their interest. They did so. Unfortunately, the caveat that they lodged, AA127983T, was in too wide a form. The defendant filed a lapsing notice. The plaintiffs then commenced these proceedings to…

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.

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Details

Case: [2005] NSWSC 942
Decision Date: 20 September 2005

CaseChat Overview and Summary

Castagna, the plaintiff, sought to enforce a right of way over the land of Great Wall Resources, the defendant, which has been on the defendant’s title since 1921. The property in question is semi-rural farmland, and the right of way provides access to a main road. The easement has not been used for an extended period, and new public roads have been constructed that offer alternative access to the main road, rendering part of the right of way unnecessary. The plaintiff argued for the extinguishment or modification of the right of way, claiming that substantial improvements would be required for it to be used for its intended purpose. The court was required to determine whether the new roads established a change in the neighbourhood, whether the difficult test of abandonment had been overcome, whether any reasonable use of the servient tenement was possible without extinguishment or modification, and whether substantial injury would be caused to the person benefiting from the easement if it were modified or extinguished.

The court found that the new roads had indeed established a change in the neighbourhood, and while the test of abandonment was difficult, it had been overcome. It was determined that no reasonable use of the servient tenement was possible without modification or extinguishment of the easement, and that substantial injury would be caused to the plaintiff if the easement were modified or extinguished. Consequently, the court concluded that the easement should be partially extinguished.

The court ordered that the easement be partially extinguished to accommodate the new public roads, allowing for the continued access to the main road while recognising the changed circumstances and the impracticality of maintaining the entire right of way. The court also noted that the partial extinguishment would not cause substantial injury to the plaintiff, as alternative access was still available. The court's decision balanced the need to adapt to modern infrastructure developments with the protection of the plaintiff's rights under the easement.

Orders