Coffill v Lagudi Holdings Pty Ltd - [2016] NSWSC 1764

Supreme Court

New South Wales

Medium Neutral Citation: Coffill v Lagudi Holdings Pty Limited [2016] NSWSC 1764
Hearing dates: 29 and 30 November 2016
Date of orders: 09 December 2016
Decision date: 09 December 2016
Jurisdiction: Equity
Before: Darke J
Decision:
Parties to bring in Short Minutes of Orders to give effect to these reasons.

Catchwords:
REAL PROPERTY – easements – particular easements and rights – passageway subject of 1919 and 2008 easements – whether 1919 easement confers right of pedestrian access in addition to vehicular access – whether temporal restriction on use of 2008 easement limited to vehicular access
REAL PROPERTY – easements – extinguishment of easements – similar rights conferred under two easements over passageway – whether earlier easement obsolete by reason of change in character of neighbourhood – whether earlier easement obsolete due to inability to serve or fulfil original purpose or object – whether plaintiffs would suffer substantial injury through extinguishment of earlier easement
Legislation Cited: Conveyancing Act 1919 (NSW) ss 89(1)(a), 89(1)(c)
Cases Cited: Cavacourt Pty Limited v Durian (Holdings) Pty Limited [1998] NSWSC 787; (1998) 9 BPR 16,833
Durian (Holdings) Pty Ltd v Cavacourt Pty Limited [2000] NSWCA 28
Heaton v Loblay (1960) SR (NSW) 332
Laris v Lin (No 2) [2016] NSWSC 560
Perpetual Trustee Co Limited v Westfield Management Limited [2006] NSWCA 337
Re Mason and the Conveyancing Act [1962] NSWR 762
Morgensen v Portuland Developments Pty Limited (1983) NSW Conv R 55-116
Tujilo v Watts [2005] NSWSC 209
Westfield Management Limited v Perpetual Trustee Co Limited (2007) 233 CLR 528; [2007] HCA 45
Texts Cited: P Butt, Land Law (6th ed 2010, Thomson Reuters)
Category: Principal judgment
Parties: Geoffrey Coffill (First Plaintiff)
Terrance Kennedy (Second Plaintiff)
Rodney Holtham (Third Plaintiff/Third Cross-Defendant)
Lagudi Holdings Pty Limited (Defendant/Cross-Claimant)
Graham William Byrne (First Cross-Defendant)
Clive Thomas Roberts (Second Cross-Defendant)
Representation:
Counsel:
Ms M Avenell (Plaintiffs/Cross-Defendants)
Ms F J Berglund (Defendant/Cross-Claimant)
Solicitors:
Bowen Legal (Plaintiffs/Cross-Defendants)
Barraket Stanton Lawyers (Defendant/Cross-Claimant)

File Number(s): 2015/262933
Publication restriction: None

Judgment

Introduction

These proceedings concern two parcels of land located on the southern side of Barrack Street in Sydney.
The registered proprietors of the first parcel (Lot 1 in Deposited Plan 71977) are Mr Byrne, Mr Roberts and Mr Holtham. They were, until recently, the trustees of the property of the Combined Services RSL sub-branch. The sub-branch is an unincorporated association created pursuant to the constitution of The Returned and Services League of Australia (New South Wales Branch). On 31 August 2016 Mr Coffill and Mr Kennedy replaced Mr Byrne and Mr Roberts as trustees. An Amended Summons was filed in Court at the hearing naming the present trustees as the plaintiffs. Steps have been taken to have the new trustees registered as the proprietors of the property. It is expected that they will become the registered proprietors in the very near future. The first parcel will be referred to as the RSL land.
The registered proprietor of the second parcel (Lot 2 in Deposited Plan 608601)…

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: [2016] NSWSC 1764
Decision Date: 09 December 2016

CaseChat Overview and Summary

In the case, Coffill v Lagudi Holdings Pty Ltd, the dispute involved the interpretation and potential extinguishment of two easements affecting a passageway. The plaintiffs sought to establish that the 1919 easement not only provided vehicular access but also included a right of pedestrian access. Furthermore, they argued that any temporal restrictions on the use of the 2008 easement should be limited to vehicular access only. The court had to determine whether the 1919 easement conferred a right of pedestrian access in addition to vehicular access and whether the temporal restrictions on the 2008 easement were limited to vehicular access.

The court was required to address the issue of whether the 1919 easement had become obsolete due to the changed character of the neighbourhood or the inability to serve or fulfil its original purpose. Additionally, the court needed to consider whether the plaintiffs would suffer substantial injury if the 1919 easement were extinguished. This required a thorough examination of the nature and extent of the easements, their historical context, and the practical implications of their continued existence or extinguishment.

The court concluded that the 1919 easement did not confer a right of pedestrian access beyond what was explicitly stated, and the temporal restrictions on the 2008 easement applied equally to both vehicular and pedestrian access. Furthermore, the court found that the 1919 easement had not become obsolete. The change in the character of the neighbourhood did not negate the easement's purpose, nor did it render it unable to fulfil its original object. Consequently, the plaintiffs would not suffer substantial injury if the 1919 easement were to be extinguished. The court thus ruled in favour of the defendant, maintaining the status quo of the easements.

The final orders of the court were that the plaintiffs' claims regarding the interpretation and extinguishment of the easements were dismissed. The easements remained in their original form, with the 1919 easement limited to its explicitly stated rights and the 2008 easement continuing with its temporal restrictions applying to both vehicular and pedestrian access.

Orders