DELIVERED ON: 6 April 2011 DELIVERED AT: Hobart HEARING DATE: 11 November 2010 JUDGMENT OF: Crawford CJ, Porter and Wood JJ
CATCHWORDS:
Real Property – Torrens title – Indefeasibility of title – Exceptions to indefeasibility – Omitted or misdescribed easement – Easements by implication, prescription etc – Whether easement created under doctrine of lost modern grant an easement arising by implication.
Real Property – Torrens title – Easements – Other matters – Construction − Inadmissibility of extrinsic evidence − Use of truncated portion of right of way to access dominant tenement via diversion over other land of dominant owner – Whether authorised by terms of easement.
Real Property – Torrens title – Easements – Other matters – Jurisdiction of court to declare an entitlement to a right of way created under the doctrine of lost modern grant – Whether jurisdiction removed by Land Titles Act 1980 (Tas), s138I.
Real Property – Easements – Particular easements and rights – Rights of way – Construction – Use of truncated portion of right of way to access dominant tenement via diversion over other land of dominant owner – Whether authorised by terms of easement.
Counsel: Appellant: M E O'Farrell SC, A Buckley Respondent: P L Jackson Solicitors: Appellant: Toomey Maning & Co Respondent: Zeeman Kable & Page
Judgment Number: [2011] TASFC 1 Number of paragraphs: 70
Serial No 1/2011
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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AGLC
Chick v Dockray [2011] TASFC 1
Case
[2011] TASFC 1
Decision Date
CaseChat Overview and Summary
In *Chick v Dockray*, the Supreme Court of Western Australia considered a dispute concerning a claim of an easement over land held under the Torrens title system. The central issue revolved around whether an easement purportedly created under the doctrine of lost modern grant constituted an "omitted or misdescribed easement" for the purposes of an exception to indefeasibility of title.
The court was required to determine whether the doctrine of lost modern grant, which presumes the existence of a lost deed to establish a prescriptive easement after a period of use, could operate to create an easement that would be recognised as an omitted or misdescribed easement under the *Transfer of Land Act 1893* (WA). This involved an analysis of the nature of easements created by implication and prescription in the context of the Torrens system's emphasis on the register.
The court reasoned that the doctrine of lost modern grant, while a common law mechanism for establishing prescriptive rights, did not create an easement by implication in the statutory sense contemplated by the exceptions to indefeasibility. Instead, it was a method of proving the existence of an easement that would have been registered had it been properly created. Consequently, an easement established solely through the doctrine of lost modern grant, without prior registration or a basis for implication at the time of the original grant of the dominant and servient tenements, would not fall within the exception for omitted or misdescribed easements. The court held that the claim for an easement under the doctrine of lost modern grant was not an exception to indefeasibility.