Daar Pty Ltd v FEZA Foundation Limited

Daar Pty Ltd, the tenant, sought access to their leased premises by crossing over the land owned by FEZA Foundation Limited, the landlord, from the foot of the stairs. The dispute was heard and determined in the Supreme Court of Victoria. The central legal issues before the court were whether the tenant had an implied right of access over the landlord’s land, and if so, whether this could be established under the Rule in Wheeldon v. Burrows. The court needed to determine whether the necessary conditions for the application of the rule were met, particularly if there was unity of ownership and occupation of the dominant and servient tenements at the time the lease was granted.

The court examined the circumstances under which the lease was granted and considered the factual matrix of the case. It was found that at the time the lease was executed, there was no unity of ownership and occupation between the dominant and servient tenements. Additionally, the court noted that the landlord had not granted any express permission for the tenant to cross their land, and there was no physical necessity for the tenant to cross the landlord’s land to access the premises. Consequently, the court held that the Rule in Wheeldon v. Burrows did not apply, and no implied right of way or quasi-easement existed in favour of the tenant.

As a result of the court's determination, the tenant's claim for an implied easement was dismissed. The court found that there were no grounds to imply such a right of access under the circumstances presented. The final orders of the court reflected this conclusion, and the tenant's claim was unsuccessful. The court did not grant the tenant the right to cross the landlord’s land from the foot of the stairs.