Colovic v Davey

Case [2021] SASCA 117

Supreme Court of South Australia

(Court of Appeal: Civil)

COLOVIC v DAVEY & ANOR

[2021] SASCA 117

Judgment of the Court of Appeal  

(The Honourable Justice Lovell, the Honourable Justice Doyle and the Honourable Justice Bleby)

21 October 2021

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - PLEADINGS - STRIKING OUT

REAL PROPERTY - TORRENS TITLE - INDEFEASIBILITY OF TITLE - CERTIFICATE OR FOLIO OF REGISTER AS CONCLUSIVE EVIDENCE

REAL PROPERTY - EASEMENTS - PARTICULAR EASEMENTS AND RIGHTS - RIGHTS OF WAY

This is an appeal from an interlocutory decision striking out paragraphs of the appellant’s defence and summarily dismissing the appellant’s cross claim.

The appellant is the registered proprietor of a parcel of land which lies adjacent to the respondents’ land. The appellant’s land is the servient tenement, and the respondents’ land is the dominant tenement, in respect of an easement in the nature of a right of way marked ‘A’ on the Certificates of Title of both parcels of land.

The proceedings between the parties relate to an encroachment upon the appellant’s land located within the area of the right of way marked A and consisting of a utilities area used by the respondents and a balcony forming part of the respondents’ dwelling.

In their claim, the respondents seek to rely upon the right of way marked A.  In his defence and cross claim, the appellant alleges that the right of way marked A no longer subsists, and that the respondents, by continuing to traverse the appellant’s land in reliance on that right of way, are trespassing. 

This is an appeal from an interlocutory decision striking out paragraphs of the appellant’s defence and summarily dismissing the appellant’s cross claim.

The appellant is the registered proprietor of a parcel of land which lies adjacent to the respondents’ land. The appellant’s land is the servient tenement, and the respondents’ land is the dominant tenement, in respect of an easement in the nature of a right of way marked ‘A’ on the Certificates of Title of both parcels of land.

The proceedings between the parties relate to an encroachment upon the appellant’s land located within the area of the right of way marked A and consisting of a utilities area used by the respondents and a balcony forming part of the respondents’ dwelling.

In their claim, the respondents seek to rely upon the right of way marked A.  In his defence and cross claim, the appellant alleges that the right of way marked A no longer subsists, and that the respondents, by continuing to traverse the appellant’s land in reliance on that right of way, are trespassing. 

The respondents applied for orders that certain paragraphs of the appellant’s defence and the entirety of the appellant’s cross claim be struck out on the basis that there is no reasonable basis for the appellant’s allegation that the right of way marked A no longer subsists.

The primary judge concluded that, by operation…

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Colovic v Davey [2021] SASCA 117
Case
[2021] SASCA 117
Decision Date

CaseChat Overview and Summary

The appeal concerned a dispute between Mr Colovic, the registered proprietor of 178 Tynte Street, North Adelaide, and Mr and Mrs Davey, the registered proprietors of the adjoining property at 180-182 Tynte Street. The dispute centred on an easement in the nature of a right of way, marked "A" on the respective certificates of title, which burdened Mr Colovic's land and benefited the Davveys' land. Mr Colovic contended that the rights granted by this easement had ceased to subsist. The matter came before the Full Court of the Supreme Court of South Australia on appeal from a primary judge's decision.

The central legal issue before the Full Court was whether Mr Colovic's claim that the easement had ceased to subsist was precluded by the principle of indefeasibility of title under the Torrens system. Specifically, the court had to determine if the terms of the easement, as incorporated by reference into the Register Book, contained a limitation that could extinguish the right of way, and if so, whether pursuing this contention was inconsistent with the Torrens system.

The Full Court, per Doyle JA (with Lovell and Bleby JJA agreeing), found that Mr Colovic's case was not inconsistent with the principle of indefeasibility. The court distinguished the present case from the common law doctrine of abandonment of an easement, which does not appear on the Register Book. Instead, Mr Colovic's argument relied on a limitation expressly incorporated into the terms of the easement as recorded in the Register Book. The court held that there was a reasonable basis for Mr Colovic's contention that the right of way marked "A" no longer subsisted due to this limitation.

Consequently, the Full Court granted permission to appeal, allowed the appeal, set aside the orders made by the primary judge, and dismissed the respondents' interlocutory application.

Orders

Orders of the court

Held, per Doyle JA (Lovell and Bleby JJA agreeing), granting permission to appeal and allowing the appeal:

1. As the appellant’s case turned upon a contention that the respondents’ rights under the easement (and right of way marked A) had ceased to subsist by reason of a limitation in the terms of the easement that was incorporated by reference into the Register Book, it was not inconsistent with the principle of indefeasibility.

2. There is a reasonable basis for the appellant’s case that the right of way marked A no longer subsists.

3. The orders made by the primary judge should be set aside and the respondents’ interlocutory application dismissed

Background

Background to the litigation

For the reasons which follow, I am satisfied that the allegations made, and relief sought, by the appellant in his pleadings are not inconsistent with, or otherwise precluded by, the operation of the Torrens title system. At the very least that is arguably so. I would therefore allow the appeal.Background The land that is the subject of these proceedings consists of two adjoining tenements on Tynte Street, North Adelaide. The appellant, Mr Colovic, is the registered proprietor of 178 Tynte Street, being the land described in Certificate of Title Volume 5830 Folio 246. He acquired that property in December 2014. The respondents, Mr and Mrs Davey, are the registered proprietors of 180 – 182 Tynte Street, being the land described in Certificate of Title Volume 5172 Folio 957. The respondents acquired that property in November 2015. Tynte Street runs approximately east / west, and the appellant’s land is to the east of the respondents’ land. The appellant’s land is the servient tenement, and the respondents’ land is the dominant tenement, in respect of an easement in the nature of a right of way marked “A” on the Certificates of Title for both parcels of land. This right of way runs from Tynte Street, up the western side of the appellant’s land (and hence along its boundary with the respondents’ land). It ultimately intersects with another easement in the nature of a right of way which runs parallel to Tynte Street, along the northern boundary of the respondents’ land and through to Mansfield Street. That other right of way is marked “B” on the Certificate of Title for the respondents’ land. The Certificate of Title for the respondents’ land, under the heading “Easements”, and after referring to an unrelated drainage easement, refers to the rights of way marked A and B in the following terms:Rights of way over the land marked A or in the event of A being discontinued stopped up and no more used as a road then over the land marked B appurtenant only to the land marked X (GRO No. 8 Book 101). The Certificate of Title for the appellant’s land, in addition to some unrelated easements, contains the following reference to the right of way marked A:Right(s) of way over the land marked A (GRO No.8 Book 101). The rights of way are thus described by reference to the Memorial located in General Registry Office No. 8 Book 101. They are described in the following terms in the Memorial:All that piece of land part of the two several one acre sections of Town Land No. respectively 861 and 862 in the provincial survey marked with the letter A and containing in front to Tynte Street on the south side thereof 35 feet and the same in the rear abutting on a certain private road a way of the width of ten feet leading into another private road a way of the width of fifteen feet heading into Tynte Street and in depth that each side thereof eighty feet and which said piece of land contains thirty two feet and six inches of the South Western portion of the Town Acre No 862 be the said several dimensions respectively a little more or less. Together with a right of roadway along and across other portions of the said Town Acre No 862 lying on the east side of the said piece of land now used as a private road or in the event of such road being discontinued stopped up and no more used as a road then along and across the said private road of the width of 10 feet leading along the northern boundary of the said piece of land. (emphasis added)

Evidence

Evidence Before The Court

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Decision

Reasons for decision

For reasons which I shall develop I consider that the primary judge erred in his reliance upon Yip v Frolich given that it involved a common law abandonment of the easement (which was a limitation, or defect, in the easement that did not appear in the Register Book) rather than a limitation in the terms of the grant of an easement (which does appear in the Register Book). However, before explaining my reasoning in this respect, it is convenient to commence by summarising Besanko J’s reasoning in Yip v Frolich. The decision in Yip v Frolich The plaintiff in Yip v Frolich[33] sought injunctive relief in relation to an easement appearing on the certificate of title for the defendants’ land, which adjoined his own. The plaintiff argued that the easement conferred on him both rights of way and certain drainage rights. The defendants disputed that the easement conferred rights of way, and also argued that all rights under the easement had, in any event, been abandoned. The defendants also submitted that the injunctive relief sought by the plaintiff should be refused on discretionary grounds (including acquiescence, hardship and the plaintiff’s unreasonable conduct).[33] Yip v Frolich (2003) 86 SASR 162. Besanko J construed the terms of the easement as confined to drainage rights,[34] and then turned to consider whether those rights had been abandoned. As his Honour explained, there were two issues. First, whether there was any scope for the application of the common law doctrine of abandonment under the provisions of the Real Property Act. Secondly, if the doctrine of abandonment is available under the provisions of the Real Property Act, whether abandonment had been made out on the facts.[35][34] Yip v Frolich (2003) 86 SASR 162 at [43].[35] Yip v Frolich (2003) 86 SASR 162 at [9]. Besanko J began his consideration of the first of these issues by observing that the easement in question was registered on the respective titles of the dominant and servient parcels of land; and that the Real Property Act contained an indefeasibility provision (s 69) and a provision making the original certificate of title conclusive evidence of title to land and to any other estate or interest in land (s 51A).[36] [36] Yip v Frolich (2003) 86 SASR 162 at [45]. Besanko J reasoned that there was no section in the Real Property Act which gave the Court the power to order the Registrar-General to remove a registered easement from the title.[37] His Honour contrasted this position with the position in New South Wales,[38] and suggested that the position in this State was closer to the position in Victoria.[39] Besanko J concluded:[40]I think the position under the RPA is that a registered easement remains enforceable for so long as it appears on the title. The court cannot order its removal on the ground that at common law it has been abandoned. Under the RPA only the Registrar-General may extinguish an easement. [37] Yip v Frolich (2003) 86 SASR 162 at [46].[38] Yip v Frolich (2003) 86 SASR 162 at [46], referring to s 89 of the Conveyancing Act 1919 (NSW) and the decision of the High Court in Treweeke v 36 Wolseley Road Pty Ltd (1973) 128 CLR 274.[39] Yip v Frolich (2003) 86 SASR 162 at [47]-[48], referring to s 73 of the Transfer of Land Act 1958 (Vic) and the decisions in Riley v Penttila [1974] VR 547 at 574 and Wolfe v Freijahs’ Holdings Pty Ltd [1988] VR 1017 at 1026.[40] Yip v Frolich (2003) 86 SASR 162 at [49].

Ratio Decidendi

Legal Principle Established

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