CITATION: Clos Farming Estates v Easton & 1 Ors [2002] NSWCA 389 FILE NUMBER(S): CA 40505/01 HEARING DATE(S): 20/06/2002 JUDGMENT DATE:
9 December 2002PARTIES :
Clos Farming Estates Pty Limited (Receivers & Managers appointed) ACN 003 435 256 (Appellant)
Graham Rush Easton (First Respondent)
Stephen Arthur Hibbert (Second Respondent)JUDGMENT OF: Mason P at 1; Beazley JA at 2; Santow JA at 3
LOWER COURT JURISDICTION : Supreme Court LOWER COURT
FILE NUMBER(S) :SC 4378/00 LOWER COURT
JUDICIAL OFFICER :Bryson J
COUNSEL: S Rares, SC/ M B J Lee (Appellant)
S Finch, SC/ T G R Parker (First and Second Respondents)SOLICITORS: Corrs Chambers Westgarth (Appellant)
Allens Arthur Robinson (First and Second Respondents)CATCHWORDS: REAL PROPERTY - easements - accommodation of the dominant tenement - right capable of forming subject matter of a grant - novel easements - REAL PROPERTY - profit a prendre - profit a rendre - sui generis interest in land - novel interests in land - PRACTICE AND PROCEDURE - competency of appeal - whether appeal against an operative judicial act LEGISLATION CITED: Conveyancing Act 1919 s88B CASES CITED: Ackroyd v Smith (1850) 10 CB 164; 138 ER 68 (CP)
Attorney General of Southern Nigeria v John Holt & Co [1915] AC 599
Australian Softwood Forests v Attorney General (1981-82) 148 CLR 121
Bursill Enterprises Pt Limited v Berger Bros Trading as Pty Limited (1971) 124 CLR 73
City Developments Pty Limited v Registrar General (NT) [2001] NTCA 7
Clapman v Edwards [1938] 2 All ER 507
Clayton v Corby (1843) 5 QB 415
Commonwealth v Register of Titles for Victoria (1918) 24 CLR 348
Copeland v Greenhalf [1952] Ch 488
Corporate Affairs Commission v Australian Softwood Forest Pty Ltd [1978] 1 NSWLR 150
Dyce v Lady James Hay (1852) 1 Macq 305
In Re Ellenborough Park [1956] CH 131
Finlay 91 WN(NSW) 730 (DC)
Frater v Finlay (1968) 91 WN(NSW) 730
Glenwood Lumber Company v Phillips [1904] AC 405
Harada v Registrar of Titles [1981] VR 743
Hill v Tupper (1863) 2 H&C 121
Hornsby Council v Roads and Traffic Authority (1997) 41 NSWLR 151
Lord Chesterfield v Harris [1908] 2 CH 397
Lowe (Inspector of Taxes) v J W Ashmore Ltd (1971) 1 Ch 545
Mills v Stokman (1966-67) 116 CLR 61
Moody v Steggles (1879) 12 Ch D 261
National Provincial Bank v Ainsworth [1965] AC 1175
Permanent Trustee Australia Ltd v Shand (1992) 27 NSWLR 426
Royal Botanical Gardens & Domain Trust v South Sydney Council (2002) 76 ALJR 436
Wik Peoples v Queensland (1996) 187 CLR 1
Wright v Macadam [1949] 2 KB 744 (CA)DECISION: (1) Appeal and Cross-Appeal dismissed; (2) Appellant to pay Respondent's costs of appeal.
- 11 -IN THE SUPREME COURT
CA 40505/01
SC 4378/009 December 2002MASON P
BEAZLEY JA
SANTOW JA
CLOS FARMING ESTATES PTY LIMITED (Receivers & Managers appointed) -v- Graham Rush EASTON & 1 Ors
REAL PROPERTY - profit a prendre – profit a rendre – sui…
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Details
- Case
- [2002] NSWCA 389
- Decision Date
CaseChat Overview and Summary
Clos Farming Estates Pty Ltd (the appellant) and Easton (the respondent) were parties to a dispute concerning a right of way over land owned by the appellant. The respondent sought to establish the existence of an easement, which the appellant contested. The matter was heard by the Court of Appeal of New South Wales.
The central legal issues before the Court of Appeal were whether the right claimed by the respondent was capable of forming the subject matter of a grant, and therefore constituted a valid easement, and whether the appeal against the primary judge's decision was competent. Specifically, the court had to consider the established criteria for the creation of easements, particularly in relation to novel rights, and whether the claimed right accommodated the dominant tenement in a manner recognised by law.
The Court of Appeal affirmed the principles governing the creation of easements, including the requirement that the right must be capable of forming the subject matter of a grant. This involves considering whether the right is too extensive, whether it would leave the servient owner without reasonable use of their land, and whether it is a mere right of occupation. The court found that the right claimed by the respondent did not satisfy these criteria, as it amounted to a claim for exclusive possession of a portion of the appellant's land, rather than a mere right to use or pass over it. Consequently, the court held that the claimed right was not capable of being an easement.
The Court of Appeal dismissed the appeal and the cross-appeal, upholding the primary judge's decision. The appellant was ordered to pay the respondent's costs of the appeal.
The central legal issues before the Court of Appeal were whether the right claimed by the respondent was capable of forming the subject matter of a grant, and therefore constituted a valid easement, and whether the appeal against the primary judge's decision was competent. Specifically, the court had to consider the established criteria for the creation of easements, particularly in relation to novel rights, and whether the claimed right accommodated the dominant tenement in a manner recognised by law.
The Court of Appeal affirmed the principles governing the creation of easements, including the requirement that the right must be capable of forming the subject matter of a grant. This involves considering whether the right is too extensive, whether it would leave the servient owner without reasonable use of their land, and whether it is a mere right of occupation. The court found that the right claimed by the respondent did not satisfy these criteria, as it amounted to a claim for exclusive possession of a portion of the appellant's land, rather than a mere right to use or pass over it. Consequently, the court held that the claimed right was not capable of being an easement.
The Court of Appeal dismissed the appeal and the cross-appeal, upholding the primary judge's decision. The appellant was ordered to pay the respondent's costs of the appeal.
Orders
Orders of the court
(1) Appeal and Cross-Appeal dismissed; (2) Appellant to pay Respondent's costs of appeal.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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