Couche v Adams

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.