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Chiu v Healey

Chiu v Healey

Case [2003] NSWSC 857 18 September 2003

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CITATION: Chiu v Healey [2003] NSWSC 857

HEARING DATE(S): 23, 24 July 2003

JUDGMENT DATE:
18 September 2003

JURISDICTION:
Equity Division

JUDGMENT OF: Young CJ in Eq

DECISION: Verdict for the plaintiff. Defendant to pay costs of proceedings, including the cross claim.

CATCHWORDS: REAL PROPERTY [407] [415] [434]- Easements- Right of footway- Old System land- Deed creating easement not effective at law because not created by mortgagee, who had legal estate- However, when deed recorded on register then this conferred indefeasibility- Difference in juristic natures of easements and restrictive covenants- What constitutes abandonment of an easement- How to determine a terminus ad quem- Whether easement should be extinguished.

LEGISLATION CITED: Access to Neighbouring Lands Act 2000, Part 2
Conveyancing Act 1919, ss 88, 89
Real Property Act 1900, s 51

CASES CITED: Brunton v Hall (1841) 1 QB 792; 113 ER 1334
Butler v Muddle (1995) 6 BPR 13,984
Dabbs v Seaman (1925) 36 CLR 538
Doe d Strode v Seaton (1835) 2 CM & R 728; 150 ER 308
Gotobed v Pridmore (1970) 115 SJ 78
Green v James (1840) 6 M & W 656; 151 ER 575
Grill v Hockey (1991) BPR 11421
Hose v Cobden [1921] VLR 617
Jennison v Traficante (1980) 1 BPR 9657
Keene v Carter (1994) 12 WAR 20
Lolakis v Konitsas (2002) 11 BPR 20
Papadopoulos v Goodwin [1982] 1 NSWLR 413
Parramore v Duggan (1995) 183 CLR 633
Petty v Parsons [1914] 2 Ch 653
PSP 9968 v PSP 11173 [1979] 2 NSWLR 605
Re Alexandra [1980] VR 55
Re Mason (1960) 78 WN (NSW) 925
Simpson v Gowers (1981) 121 DLR (3d) 709
Swan v Sinclair [1925] AC 227
Treweeke v 36 Wolseley Road Pty Ltd (1973) 128 CLR 274
Vaneris v Kemeny (1977) 1 BPR 9655
Williams v Usherwood (1983) 45 P & CR 235
Zenere v Leate (1980) 1 BPR 9300

PARTIES :
Phillip King Chiu (P)
Kaye Laraine Healey (D)

FILE NUMBER(S): SC 5728/01

COUNSEL: J C Thompson (P)
M J Heath (D)

SOLICITORS: Chris Lai & Associates (P)
Harrington Maguire & O'Brien (D)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

YOUNG CJ in EQ

Thursday 18 September 2003

5728/01 – CHIU v HEALEY

JUDGMENT

1 HIS HONOUR: The plaintiff is the proprietor of No 228 Darling Street, Balmain. The defendant is the proprietor of the adjoining property, No 226 Darling Street. In 1966, and until recently, both parcels of land were under the Old System Title. No 228 was brought under the Real Property Act 1900 by primary application 65644 on 6 October 1998, and is now the land comprised in Folio Identifier 1/880222. On 7 September 1971, a qualified certificate of title issued with respect to No 226.

2 The plaintiff says that by Conveyance No 872 Book 2819, a right of footway was created over the defendant's land which is 1.865 metres wide, the entire length of No 226 along its boundary with No 228.

3 Conveyance No 872 Book…

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 Chiu v Healey

Details

AGLC: Chiu v Healey [2003] NSWSC 857
Case: [2003] NSWSC 857
Decision Date: 18 September 2003

CaseChat Overview and Summary

In Chiu v Healey, the dispute centred on the validity and enforceability of an easement over land originally conveyed under the Old System in New South Wales. The first respondent, a registered proprietor, sought a declaration that an easement of a footway over the appellant's land was invalid, unenforceable, and had been abandoned. The appellant contended that the easement was valid and enforceable. The dispute was heard in the Supreme Court of New South Wales, Equity Division.

The primary legal issues the court had to decide were whether the easement was validly created, whether it had been abandoned, and if so, how to determine the point of abandonment. The court had to consider the differences between easements and restrictive covenants, as well as the principles of indefeasibility of title under the Torrens system. The court also needed to determine the appropriate legal test for establishing abandonment of an easement and how to ascertain the terminus ad quem, or the point in time at which the easement was to end.

The court found that although the deed creating the easement was not effective at law because it was not executed by the mortgagee who held the legal estate, it nonetheless conferred indefeasibility when it was later recorded on the register. The court distinguished between easements and restrictive covenants, stating that while a restrictive covenant may be unenforceable if not created by the mortgagee, an easement can still be validly created by a party with an equitable interest. The court also concluded that the easement had not been abandoned and that the evidence did not support the finding that the easement had been extinguished. The court found that the easement was to continue until a specific event, which had not yet occurred.

The final orders of the court were that the easement was valid and enforceable, and that it had not been abandoned. The court declared that the easement should continue until the specific event that had been identified in the original deed.

Orders