Colovic v Davey

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.