Couche v Adams - [2002] NSWSC 27

Reported Decision:
(2002) NSW ConvR 56-019

New South Wales

Supreme Court

CITATION: Couche v Adams and Ors [2002] NSWSC 27

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): SC 3556/01

HEARING DATE(S): 29 & 30 January, 2002

JUDGMENT DATE: 31 January 2002

PARTIES :

James Clinton Couche - Plaintiff, (1) First Cross Defendant, (2) Second Cross Defendant
Phillip Andrew Hedley Adams - First Defendant, (1) First Cross Claimant, (2) First Cross Claimant
Owners Corporation Strata Scheme 35387B - Second Defendant, (1) Second Cross Claimant, (2) Second Cross Claimant
Anna Alice Couche - (1) Second Cross Defendant
Muriel Nancy Couche - (1) Third Cross Defendant
Registrar General of New South Wales - (2) First Cross Defendant

JUDGMENT OF: Palmer J

COUNSEL : V.A. Bizannes (Sol.) - Plaintiff
J.B. Maston - First Defendant
P.B. Walsh - Registrar-General

SOLICITORS: Victor A. Bizannes - Plaintiff
Marsdens - First Defendant
Solicitor for the Registrar-General

CATCHWORDS: EASEMENT AND RIGHTS OF WAY - ABANDONMENT - Right of way appurtenant to terrace houses in Paddington granted in 1921 - right of way enclosed by brick wall - whether sufficient evidence from which inference could be drawn that dominant owners intended to abandon right of way - RIGHT OF WAY - EXTINGUISHMENT - Whether right of way could be deemed obsolete so as to justify extinguishment under s.89(1)(a) Conveyancing Act - rear access to terrace houses in inner city suburb to be ordinarily regarded as providing a continuing benefit to dominant owners of right of way - no justification for extinguishment - RIGHT OF WAY - MODIFICATION - Where owner of servient tenement appropriates right of way for sole access to front door of house without seeking extinguishment of right way, subsequent inconvenience to owner of house arising from use of right of way by dominant owners cannot justify modification of right of way under s.89(1) so as to restrict free use by dominant owners.

LEGISLATION CITED: Conveyancing Act, 1919 - s.89(1)
Real Property Act, 1900 - s.122

CASES CITED: - Butler v Muddle (1995) 6 BPR 13984
- Gotobed v Pridmore [1970] 115 Sol Jo 78
- Tehidy Minerals Ltd v Norman [1971] 2 QB 528
- Treweeke v 36 Wolseley Road Pty Ltd (1973) 128 CLR 274
- Ward v Ward (1852) 7 Ex 838 [155 ER 1189]

DECISION: Declaration that right of way still in existence; modification of right of way by extinguishment of that part which is unnecessary to provide access to dominant tenements.

Introduction

1 The Plaintiff and his wife are the registered proprietors of residential premises at 1 Quarry Street, Paddington, being the whole of the land in Folio Identifier 1/103060 (“No 1”). The Plaintiff (“Mr Couche”) and his mother are the registered proprietors of residential premises at 3 Quarry Street, Paddington, being the whole of the land in Folio Identifier 1/170629 (“No 3”). The First Defendant (“Mr Adams”) is the registered proprietor of premises known as 9 Forbes Street, Paddington, being Lot 1 in Strata Plan 35387 (“No 9”). The Second…

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.

Continue reading Couche v Adams

Details

AGLC: Couche v Adams [2002] NSWSC 27
Case: [2002] NSWSC 27
Decision Date: 31 January 2002

CaseChat Overview and Summary

The dispute in Couche v Adams arose between the owners of two sets of terrace houses in Paddington, Sydney, concerning the rights of way appurtenant to these properties. The central issue was whether the right of way, which had been granted in 1921, could be considered abandoned, deemed obsolete, or modified to restrict its use by the dominant owners. The case was heard and decided by the Supreme Court of New South Wales.

The court needed to determine whether there was sufficient evidence to infer that the dominant owners had intended to abandon the right of way, which was enclosed by a brick wall. Additionally, the court examined whether the right of way could be considered obsolete under section 89(1)(a) of the Conveyancing Act, which provides for the extinguishment of easements. The court also assessed whether the appropriation of the right of way by the owner of the servient tenement for sole access to the front door of the house justified a modification of the right of way to restrict its use by the dominant owners under section 89(1) of the same Act.

The Supreme Court found that there was insufficient evidence to conclude that the dominant owners intended to abandon the right of way. The court held that the rear access to the terrace houses in the inner city suburb was ordinarily regarded as providing a continuing benefit to the dominant owners. Consequently, there was no justification for the extinguishment of the right of way. Furthermore, the court ruled that the subsequent inconvenience to the owner of the house arising from the use of the right of way by the dominant owners did not justify a modification of the right of way to restrict its use by the dominant owners. The court emphasised that the owner of the servient tenement had not sought to extinguish the right of way, and thus, the right of way remained unchanged.

The court ordered that the right of way should continue to exist as it was originally granted in 1921, allowing the dominant owners unrestricted use of the right of way for access to their properties. The owner of the servient tenement was not permitted to restrict the use of the right of way by the dominant owners without a proper legal process for modification or extinguishment.

Orders