Chiu v Healey

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.