Davey v Colovic
[2021] SASC 7
•8 February 2021
SUPREME COURT OF SOUTH AUSTRALIA
(Land and Valuation Division)
DAVEY & ANOR v COLOVIC
[2021] SASC 7
Judgment of the Honourable Justice Parker
8 February 2021
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - PLEADINGS - STRIKING OUT
REAL PROPERTY - EASEMENTS - PARTICULAR EASEMENTS AND RIGHTS - RIGHTS OF WAY
REAL PROPERTY - TORRENS TITLE - INDEFEASIBILITY OF TITLE - CERTIFICATE OR FOLIO OF REGISTER AS CONCLUSIVE EVIDENCE
This is an interlocutory application filed by the applicants seeking orders to strike out paragraphs 3.3, 4.3, 10 and 22 of the respondent’s defence and striking out the respondent’s cross claim. Alternatively, the applicants seek that judgment or summary judgment be entered in their favour in respect of the respondent’s cross claim.
The proceedings concern a portion of the applicants’ property that encroaches onto, what the applicants contend, is a right of way situated on the respondent’s property. The applicants seek an order under s 4 of the Encroachments Act 1944 (SA) transferring the area of the encroachment to them.
The respondent’s defence to these proceedings includes a denial that the right of way alleged by the applicants subsists over the relevant portion of the respondent’s land. The respondent contends that, on its proper construction, the right of way is only available to be used until it is stopped up. Once the right of way becomes stopped up, it no longer exists. On that basis, the respondent filed a cross claim asserting a claim in trespass against the applicants.
The applicants contend that the easement recorded on the respective certificates of title provides for an indefeasible interest in favour of the applicants, therefore there is no reasonable basis for denying the existence of the right of way or asserting a claim in trespass.
Held, per Parker J:
1. Until such time as the Registrar-General may exercise her power under s 90B of the Real Property Act 1886 (SA) (RPA) to remove the easement from the respective certificates of title, the easement subsists. As such, the paragraphs of the respondent’s defence which contain a denial that a right of way subsists over the relevant portion of the land of the respondent lacks “a proper basis because it is based upon an assertion for which there is no basis in the material available to the party”.
2. Based on the finding that the right of way subsists, until such time as the Registrar-General exercises her power under s 90B of the RPA, there is no reasonable basis for the assertion that the applicants are trespassing on the land of the respondent.
3. Paragraphs 3.3, 4.3, 10 and 22 of the defence filed by the respondent are struck out.
4. The respondent’s cross claim is summarily dismissed.
Conveyancing Act 1919 (NSW) s 89; Encroachments Act 1944 (SA) s 4; Real Property Act 1886 (SA) ss 69, 70, 90B; Registration of Deeds Act 1935 (SA) s 6; Transfer of Land Act 1958 (Vic) (Vic) s 73; Uniform Civil Rules 2020 (SA) 144.2, referred to.
Adelaide Brighton Cement v Hallett Concrete Pty Ltd SASC 161; Cotting v City of Boston 87 NE 205 (1909) (Mass); Deguisa v Lynn [2020] HCA 39; Duncan v Cliftonville [2001] NSWSC 968; Westfield Management Ltd v Perpetual Trustee Co Ltd (2007) 233 CLR 528; Yip v Frolich (2003) 86 SASR 162, applied.
Barry v Fenton [1952] NZLR 990, distinguished.
Collins v Slade (1874) 23 WR 199; JT Nominees Pty Ltd v Macks (2007) 97 SASR 471; Hollins v Verney (1884) 13 QBD 304; Riley v Penttila [1974] VR 547; Webster v Strong [1926] VLR 5; Wolfe v Freijahs’ Holdings Pty Ltd [1988] VR 1017; Yip v Frolich (2004) SASR 467, discussed.Breskvar v Wall (1971) 126 CLR 376; Bursill Enterprises Pty Ltd v Berger Bros Trading Co Pty Ltd (1971) 124 CLR 73; Frazer v Walker [1967] 1 AC 569; Palais Parking Station Pty Ltd v Shea (1980) 24 SASR 425; Parramore v Duggan (1995) 183 CLR 633; Treweeke v 36 Wolseley Road Pty Ltd (1973) 128 CLR 274, considered.
DAVEY & ANOR v COLOVIC
[2021] SASC 7
Land and Valuation Division
PARKER J: These proceedings concern a portion of the applicants’ property that encroaches onto, what the applicants contend, is a right of way situated on the respondent’s property. The applicants seek an order under s 4 of the Encroachments Act 1944 (SA) transferring the area of the encroachment to them. They also seek that the Court determine the compensation, if any, that should be paid to the respondent consequential upon such a transfer.
The applicants seek orders striking out paragraphs 3.3, 4.3, 10 and 22 of the respondent’s defence and striking out the respondent’s cross claim. In essence, the applicants contend that whether the right of way subsists may only be determined by the Registrar-General. Alternatively, the applicants seek that judgment or summary judgment be entered in their favour in respect of the respondent’s cross claim.
Background
The land that comprises the subject of these proceedings is:
1.180 – 182 Tynte Street, North Adelaide, being the land comprised and described in Certificate of Title Volume 5172 Folio 957, of which the applicants are, and have been since they purchased the land on or about 16 November 2015, the registered proprietors (Applicants’ Land); and
2.178 Tynte Street, North Adelaide, being the land comprised and described in Certificate of Title Volume 5830 Folio 246, of which the respondent is the registered proprietor (Respondent’s Land).
The applicants contend that the Respondent’s Land is the servient tenement in respect of a right of way marked “A” on the Certificate of Title Volume 5830 Folio 246. The right of way runs from Tynte Street through the Respondent’s Land and intersects with another right of way which runs parallel to Tynte Street through to Mansfield Street.[1] The respondent contends that the right of way marked “A” no longer exists.
[1] The private road which runs parallel to Tynte Street from Mansfield Street and intersects with the area marked A on the Respondent’s Land is labelled B on the Certificate of Title for the Applicants’ Land (i.e. Certificate of Title Volume 5172 Folio 957).
An identification survey report, prepared for the applicants by a licensed surveyor, Mr Jeffrey Fudge, indicates that the encroachment onto the Respondent’s Land occupies a rectangular area of 3.5 m x 0.76 m (the Encroachment), located entirely within the alleged right of way. The survey report also shows that the Encroachment precisely coincides with the point at which the boundary between the Applicants’ Land and that of the respondent moves directly to the west by 0.76 m. That westward realignment extends 3.5 m to the northern boundary of the land. The Encroachment includes an air conditioning plant, sewage and storm water outlets, electricity and gas connections and other essential utilities. A first-floor balcony forming part of the applicants’ home is located above the Encroachment.
In the course of applying for development plan consent from the City of Adelaide in respect of work to be performed on the balcony area of the first floor of their home, the applicants were informed about the Encroachment by the previous owner of their land.
On 18 July 2019, the respondent wrote to the City of Adelaide opposing the application for development plan consent for the proposed work to the applicants’ balcony area. The respondent maintained that objection at a meeting of the Council Assessment Panel on 19 August 2020. The basis for the objection was the Encroachment.
On 7 August 2019, the applicants’ solicitors wrote to the respondent proposing, amongst other matters, a resolution of the Encroachment. The applicants’ solicitors wrote to the respondent again on 8 December 2019, offering to pay $3,000 to the respondent by way of compensation in exchange for the respondent’s consent to the realignment of the boundaries of the Applicants’ Land and the Respondent’s Land. Under this proposal the land comprising the Encroachment would be transferred to form part of the Applicants’ Land. Enclosed with the proposal was:
·the Identification Survey Report;
·a copy of a valuation report dated 3 October 2019 undertaken by Mr Adih valuing the land the subject of the Encroachment at $2,000; and
·a request for consent from the respondent to undertake the work described in the applicants’ application for planning consent.
The respondent contends that relief should be denied under s 4 of the Encroachments Act on the basis that there is no subsisting right of way that would permit the applicants to access the services in the area that is the subject of the Encroachment. The respondent further contends that any access by the applicants to the area of the Encroachment via the alleged right of way would constitute a trespass.
On 7 August 2020, the respondent filed a statement of cross claim seeking the following orders:
1.a declaration that the purported right of way has been discontinued, stopped up and is no more used as a road;
2.a declaration that the right of way over the area marked “A” on the Certificate of Titles has ceased and is forever at an end;
3.a permanent injunction restraining the applicants (including their agents and contractors) from passing onto the area marked “A” on the Certificate of Titles other than at the invitation of the respondent;
4.a mandatory injunction requiring the removal of the step which has been constructed on the Respondent’s Land;
5.a mandatory injunction requiring the applicants to remove the gated areas and the services insofar as they constitute an Encroachment on the Respondent’s Land;
6.costs.
The applicants’ interlocutory application
By interlocutory application under r 102.1 of the Uniform Civil Rules 2020 (SA) (UCR), the applicants seek that paragraphs 3.3, 4.3, 10 and 22 of the respondent’s defence be struck out under r 70.3 of the UCR. The applicants contend that those paragraphs are frivolous or vexatious or do not disclose a reasonable defence. The premise for those contentions is that there is no reasonable basis for contesting the existence of the right of way easement in favour of the applicants that is registered on the Certificate of Titles for both the Applicants’ Land and the Respondent’s Land.
The applicants also seek that the respondent’s statement of cross claim be struck out under r 70.3 of the UCR. Alternatively, they seek that judgment be entered in favour of the applicants on the respondent’s cross claim and the respondent’s action be dismissed under r 143.2(1), or that summary judgment be entered against the respondent’s cross claim under r 144.2(2). The applicants seek those orders on the following grounds:
1.the Cross Claim is frivolous or vexatious;
2.the Cross Claim does not disclose a reasonable cause of action;
3.there is no reasonable basis for prosecuting the Cross Claim;
4.there is no reasonable basis for prosecuting the cause of action in trespass;
5.there is no reasonable basis for contesting the issue raised by the Cross Claim concerning the registered easement.
The Real Property Act
The relevant provisions of the Real Property Act 1886 (SA) (RPA) are as follows:
69—Title of registered proprietor indefeasible
The title of every registered proprietor of land shall, subject to such encumbrances, liens, estates, or interests as may be notified on the certificate of title of such land, be absolute and indefeasible, subject only to the following qualifications …
Section 69 is reinforced by s 70:
70—In other cases title of registered proprietor shall prevail
In all other cases the title of the registered proprietor of land shall prevail, notwithstanding the existence in Her Majesty, Her heirs, or successors, or in any person of any estate or interest whatever whether derived by grant from the Crown or otherwise, which but for this Act might be held paramount or to have priority; and notwithstanding any want of notice, or insufficient notice of any application, or any error, omission or informality in any application or proceedings.
90B—Variation and extinguishment of easements
(1)Subject to this section, the Registrar-General may on application (in a form approved by the Registrar-General) by the proprietor of the dominant or servient land or on the Registrar-General's own initiative—
(a) vary the position of, or extend or reduce the extent of, an easement over servient land; or
(b) vary an easement by extending the appurtenance of the easement to other land owned by the proprietor of the dominant land; or
(c) extinguish an easement.
(2)Subject to this section, the Registrar-General must not act under subsection (1) except on the application, or with the written consent, of the proprietor of the dominant land and the servient land and with the written consent of all other persons who—
(a)in the case of land under the provisions of this Act—appear from the Register Book to have, or to claim, an estate or interest in the dominant or servient land;
(b)in the case of land that is not under the provisions of this Act—are known to the Registrar‑General (or who become known to the Registrar-General after making reasonable enquiry) to have, or to claim, an estate or interest in the dominant or servient land.
(3)The Registrar-General may dispense with the consent of the proprietor of the dominant or servient land required by subsection (2) if the Registrar-General is satisfied that—
(a) notice complying with subsection (3e) has been given to the proprietor; and
(b) 28 days has passed since the notice was given; and
(c) the proprietor's estate or interest in the dominant or servient land will not be detrimentally affected by the proposed variation or extinguishment of the easement.
(3a)The Registrar-General may dispense with the consent of a person required by subsection (2) (other than the proprietor of the dominant or servient land) if he or she is satisfied that the person's estate or interest in the dominant or servient land will not be detrimentally affected by the proposed variation or extinguishment of the easement.
(3b)Without limiting the generality of subsection (3) or (3a), where—
(a) the original purpose of a right-of-way was to provide access to the dominant land to which it is appurtenant; and
(b) the right-of-way can no longer be exercised by the proprietor of that land for that purpose because the land has subsequently been separated from the right‑of‑way by the creation of intervening allotments,
the Registrar-General may extinguish the right-of-way without the consent of a person required by subsection (2) if he or she is satisfied that there is no reason to believe or suspect that the proprietor of that land, or a successor in title of the proprietor, has any reasonable prospect of using the right-of-way for access to that land in the future.
(3c)Without limiting the generality of subsection (3) or (3a), where dominant land is separated from a right-of-way appurtenant to the land by intervening land and the Registrar-General is satisfied that the continued existence of the right-of-way would not enhance the use or enjoyment of the dominant land, he or she may extinguish the right-of-way without the consent of a person required by subsection (2).
(3d)Before taking action under subsection (3b) or (3c) the Registrar-General must be satisfied that—
(a) notice complying with subsection (3e) has been given to the proprietor of the dominant land; and
(b) 28 days has passed since the notice was given.
(3e)The notice referred to in subsections (3) and (3d) must—
(a) be approved by the Registrar-General; and
(b) include details of the proposed variation or extinguishment of the easement; and
(c) invite the person to whom it is given to make representations to the Registrar‑General in relation to the proposal within 28 days.
(4)The Registrar-General may extinguish an easement under subsection (1) without the consent of a person required by subsection (2) if—
(a) —
(i)in the opinion of the Registrar-General it is not reasonably practicable to ascertain the identity or whereabouts of that person; and
(ii)the Registrar-General is satisfied that the proprietor of the dominant land has ceased to exercise the rights conferred by the easement; and
(b) the Registrar-General has published notice of his or her intention to act under subsection (1) in the Gazette and in a newspaper circulating generally throughout the State; and
(c) where the person's identity is known—the Registrar-General has sent notice of his or her intention to act under subsection (1) by post addressed to the person at his or her last address known to the Registrar-General; and
(d) at least 21 days has elapsed since—
(i)notice was published under paragraph (b); and
(ii)where paragraph (c) applies, notice was posted under that paragraph.
(6)Subject to subsection (7), the proprietor of dominant land cannot transfer or convey the land without the easement that is appurtenant to it.
(7)The proprietor of dominant land or of some part of it may transfer or convey part of the land without the appurtenant easement if rights under the easement continue in existence in respect of some other part of the dominant land.
(8)The easement is extinguished in respect of land transferred or conveyed under subsection (7).
(9)Where, in the opinion of the Registrar-General, the creation or continuance of an easement was, or was likely to have been, a requirement on which—
(a) the issue of a certificate by the Development Assessment Commission under section 51 of the Development Act 1993; or
(b) the issue of a certificate by a council or the South Australian Planning Commission under Part 19AB; or
(c) the approval of an application for the deposit of a strata plan by the South Australian Planning Commission or a council; or
(d) the consent or approval of an authority under a corresponding previous enactment,
was based—
(e) the easement cannot be varied or extinguished under this section; and
(f) the appurtenance of the easement cannot be extended to other land under this section; and
(g) the easement cannot be merged with the servient land by transfer or conveyance of the easement to the proprietor of the servient land or the transfer or conveyance of the servient land to the proprietor of the easement; and
(h) part of the dominant land cannot be transferred or conveyed separately from the easement thereby extinguishing the easement in respect of that land,
without the consent of the Development Assessment Commission.
(10)Upon the variation or extinguishment of an easement under this section the Registrar‑General must make such consequential entries in the Register Book or such entries in the records of the General Registry Office as he or she considers necessary.
(11)A reference in this section to dominant land includes a reference to an easement that is not appurtenant to any land.
(12)This section is subject to and does not derogate from any other Act relating to the variation or extinguishment of easements of a particular class.
The applicants’ submissions
The applicants submit the basis for the present application is that the respondent is alleging that the applicants are trespassing on his land notwithstanding the existence of a registered right of way easement in favour of the applicants over the Respondent’s Land.
In essence, the applicants contend that the easement recorded on the Certificate of Titles of the Applicants’ Land and the Respondent’s Land provides for an indefeasible interest in favour of the applicants pursuant to s 69 of the RPA. The respondent has not made any application to the Registrar-General in accordance with s 90B of the RPA to vary or extinguish the right of way easement recorded on the respective Certificates of Title. Unless and until the right of way easement is extinguished under s 90B, the applicants are entitled to its use and benefit.
Power to strike out part of a pleading
The applicants rely upon r 70.3 of the UCR and the Court’s power to strike out paragraphs 3.3, 4.3, 10 and 22 of the respondent’s defence.
The applicants contend that these paragraphs of the respondent’s defence are “premised on an assertion that the applicants are not entitled to benefit from the right-of-way over the respondent’s land”. The applicants reject this assertion on the basis of the indefeasibility principle expressed in s 69 and s 70 of the RPA.
The applicants rely on a line of authority in support of their submission that the principles regarding the effect of registration and indefeasibility of title are well settled.[2] The applicants also rely upon the express power conferred upon the Registrar-General by s 90B(1) to extinguish an easement, either on application by the proprietor of the dominant or servient land, or on her own motion.
[2] See, for example, Frazer v Walker [1967] 1 AC 569; Breskvar v Wall (1971) 126 CLR 376 at 385‑386; Palais Parking Station Pty Ltd v Shea (1980) 24 SASR 425; Parramore v Duggan (1995) 183 CLR 633.
The Registrar-General’s power under s 90B(1) is limited by s 90B(2), which inter alia requires “the written consent, of the proprietor of the dominant land and the servient land”. The applicants submit that they have not given consent as the proprietors of the dominant land to vary or extinguish the right of way easement.
The Registrar-General may dispense with the requirement for consent of the proprietor of the dominant or servient land if she is satisfied that the requirements of s 90B(3) have been met. The applicants allege that the respondent has not given them a notice complying with s 90B(3e). They submit that, unless and until the respondent gives them a notice in accordance with s 90B(3e) and either:
·obtains the applicants’ consent to extinguish the registered easement; or
·satisfies the Registrar-General that the applicants’ estate or interest in the registered easement will not be detrimentally affected by the proposed variation or extinguishment of the easement;
the applicants are entitled under the doctrine of indefeasibility to benefit from and use the right of way. In that light, the applicants submit that there is no reasonable basis for the respondent’s assertion that the applicants are trespassing on his land.
During the course of oral argument, the applicants’ counsel further submitted that the decision required under the Encroachments Act does not involve an analysis of whether or not there is a current and existing right of way over the land. Rather, that is a question that would be more appropriately determined by the Registrar-General.
For that reason, the applicants submit that paragraphs 3.3, 4.3, 10 and 22 of the respondent’s defence relating to the existence of the right of way and trespass are frivolous or vexatious and/or do not disclose a reasonable defence. That is because there is no reasonable basis to contest the issue raised in those paragraphs.
The applicants rely on the analysis by Doyle J of the general principles applicable under r 70.3 of the UCR in Adelaide Brighton Cement v Hallett Concrete Pty Ltd:[3]
Abuse of process is a broad concept. It may take a number of different forms, but is usually associated with some improper or collateral purpose. Relevantly in the present context, it will be informed by the overarching obligations of the parties and their lawyers under UCR 3.1, and extend to the pursuit of a claim which does not have a proper basis in light of that rule. The claim might lack a proper basis because it is based upon an assertion for which there is no basis in the material available to the party, which misstates the material upon which it is based, or which extends beyond any assertion for which that material might provide a basis.
As to this last matter, I refer to my earlier articulation … of the distinction between a pleaded case which is based upon a general inference with a proper foundation, and a pleaded case that involves impermissible fishing or trawling for a case. The latter may be seen as either a species of abuse of process, or the absence of a reasonable basis for the pleaded case.
It has been suggested that abuse of process in this context may include the pursuit of a pleading that does not disclose a reasonable cause of action. However, I consider it unnecessary to dwell on whether abuse of process extends this far given that the failure or inability to disclose a reasonable cause of action is itself a basis for striking out a pleading or summarily dismissing an action.
(Footnotes omitted)
[3] [2020] SASC 161 at [63] – [65].
The applicants contend that these observations are equally applicable to a case where a reasonable defence is not disclosed. They submit that paragraphs 3.3, 4.3, 10 and 22 of the respondent’s defence should be struck out pursuant to r 70.3 of the UCR as they fail to disclose a reasonable defence.
Power to enter judgment or summary judgment
The applicants’ submissions in relation to r 143.2(1) of the UCR also rely on the principles stated by Doyle J in Adelaide Brighton and set out above at [24]. They also refer to the decision of Bleby J in JT Nominees Pty Ltd v Macks where his Honour held, referring to r 104 of the Supreme Court Rules 2006 that:[4]
[Rule] 104 also refers to striking out pleadings on grounds other than abuse of process. That is in the example quoted in the rule. One does not normally associate failure to disclose a reasonable cause of action with abuse of process. Although the latter is a compendious term, it is usually associated with some improper or collateral purpose, impugning some other court decision, involving more than one action for the same relief or some complaint associated with the process itself rather than the cause of action. Nevertheless, if the example carries weight, it would justify striking out a pleading under r 104 on the ground that it discloses no reasonable cause of action. Compare r 193, where the “proceedings” may be dismissed on this ground.
[4] (2007) 97 SASR 471 at [30].
The applicants contend that, as the right of way on the Respondent’s Land is an easement registered on the Certificates of Title for both the applicants’ and the respondent’s land, there is no reasonable basis for the assertion that the applicants are trespassing on the Respondent’s Land.
Further, and in the alternative, the applicants rely on r 144.2(2) for an order that summary judgment be entered in their favour against the respondent’s cross claim on the grounds 3 to 5 set out above at [12].
Relying on the doctrine of indefeasibility, the applicants submit that any evidence adduced by the respondent in support of paragraphs 3.3, 4.3, 10 and 22 of his defence will have no bearing on the fact that the right of way is a registered easement. The respondent has not sought to extinguish the registered easement by way of the process provided for by s 90B of the RPA. Accordingly, there is no reasonable basis for asserting a claim in trespass against the applicants. As such, the applicants contend that they are entitled to summary judgment against the respondent’s cross claim.
The respondent’s submissions
The essence of the contentions advanced by the respondent relate to the proper construction of the right of way easement. The respondent submits that the right of way is only available to be used until it is stopped up. Once the right of way becomes stopped up, it no longer exists.
The respondent refers to the terms of the right of way as described in the Memorial:[5]
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 Eastern portion of the said Town Acre No 861 and two feet six inches of the South Western portion of the said Town Acre No 862 be the said several dimensions respectively a little more or less. Together with a right of roadway[6] 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)
[5] The right of way is identified in the Certificate of Title as GRO No 8 Book 101. GRO denotes the General Registry Office.
[6] The italicised words are unclear in the handwritten document but, when read in context and consistently with similar usage elsewhere in the document, appear to be either “roadway” or “road a way”.
The respondent’s counsel observed that because of the construction of a garage at the end of the Respondent’s Land, the right of way marked “A” on the respective Certificate of Titles has been stopped up. Hence, that right of way no longer exists.
The respondent submits that the right of way easement marked “A” is effectively connected to the area marked “B” on the Certificate of Title of the Applicants’ Land. Therefore, it could not be removed from the dominant tenement. This is because, in the respondent’s submission, the right of way permits use of the area marked “A” while it is a private road. However, if that area is stopped up then the area marked “B” may be used.
Drawing on the reference in the terms of the right of way to the area marked “A” being available until it is stopped up, the respondent submits that an alternative construction is that the right of way permits that if the area marked “A” is no longer stopped up, then in that event, the right of way over the area marked “A” would continue to subsist. To put the matter another way, the right of way over the area marked “A” is supressed for such time, and for as long as, it is stopped up and not available as a private road.
In support of the submission that rights of way can, on their terms, be qualified or limited, the respondent relies on the decision of North J of the High Court of New Zealand in Barry v Fenton.[7] That case concerned a right of way that permitted the dominant tenement holder to pass over land by carriage. The issue in dispute was whether the right of way also permitted passage by foot. In finding that the right of way did not permit passage by foot, North J held:[8]
… [A]s a matter of construction, I cannot avoid the conclusion that the grant expressly limits the defendant’s user of the right-of-way to vehicles. It follows, then, that the defendant is not entitled to use the right-of-way as a footway.
[7] [1952] NZLR 990.
[8] Ibid at 992.
The respondent contends that the Court should proceed on a basis similar to that adopted by North J in Barry v Fenton and construe the easement in accordance with its own terms. Under that approach, the respondent submits that the Court must find that because the easement has been “stopped up”, it no longer exists. While the Court could direct the Registrar-General under s 64 of the RPA to remove the easement from both Certificates of Title, the respondent contends that is unnecessary because the easement has been extinguished on its own terms.
The respondent further submits that the defence that the Encroachment will materially inhibit his ability to use and expand the garage at the end of the right of way marked “A” is squarely within the kind of matters considered by the Court when exercising its discretion under s 4(3) of the Encroachments Act. The respondent’s counsel contends that, if no such right of way exists, the grant of the orders sought by the applicants would essentially amount to the sanctioning by the Court of a continuing trespass.
The respondent summarises his argument with the submission that to grant the interlocutory orders sought by the applicants would preclude the respondent from making arguments in respect of these matters at trial. On that basis, the respondent submits that the matters raised in relation to the existence of the right of way are not untenable as a defence, nor are they untenable as a separate ground of attack.
Deguisa v Lynn
As the judgment of the High Court in Deguisa v Lynn was published after oral submissions in this appeal had been completed, I invited the parties to make further submissions about the relevance of that High Court decision.[9] The applicants submitted that the principle stated by the High Court supports their position insofar as it is based upon the principle of indefeasibility. They reiterate that they are entitled to benefit from the registered interest, being the right of way easement that they held over the land of the respondent, unless and until that easement is removed from both Certificates of Title. They also submit that the reference to the Memorial held in the General Register Office cannot and does not override their easement as registered on the Certificate of Title.
[9] [2020] HCA 39.
The respondent submits that the decision of the High Court in Deguisa does not give rise to any new issue. The respondent’s case turns upon the specific terms of the right of way as recorded on the Certificate of Title and in the General Register Office. The limitations on the right of way are clearly and plainly recorded on the Certificate of Title and have been at all relevant times. This is not a case where the respondent is seeking to rely upon rights or instruments which are not stated or referred to within the current Certificate of Title. There was no need for the applicants to search for material extraneous to the Register Book so as to understand the limitations of the right of way. Those limitations were evident from a plain reading of the Certificate of Title and the Memorial entered in the Register Book by the Registrar-General.
Consideration
The applicants’ contentions do not require the Court to determine any question of fact that ought to be left for the trial. It is accepted by the parties that the easement is stopped up.
Thus, the ultimate questions to be decided are, first, whether the Court can decide whether the easement has been extinguished or is this a matter that only the Registrar-General can decide under s 90B of the RPA. Secondly, if the Court can decide the extinguishment issue, should that be decided now in response to the interlocutory application or deferred until trial.
Limited easements
Before addressing those two ultimate questions, it is necessary to consider whether the parties have correctly assumed that a right of way easement may contain a term that limits the duration of the easement. Their disagreement is as to whether such an easement may only be extinguished by the Registrar-General under s 90B of the RPA. Before dealing with that issue, I consider it necessary to consider whether the assumption made by the parties about easements of limited duration is correct.
The issue before the Supreme Court of New South Wales in Duncan v Cliftonville Estates Pty Ltd was the effect of an easement granted in the following terms: [10]
A right of carriageway over the part of the servient tenement for the benefit of the dominant tenement but only whilst the size and height of the current structures erected on the dominant tenement remain unaltered and comprise only two residences.
[10] [2001] NSWSC 968 at [10].
Young CJ in Eq held that:[11]
[11] Ibid at [27] to [32].
The real problem with the right of carriageway that is granted or purported to be granted is that it does not appear to me to be one which, as the parties obviously intended, could be a registered legal interest.
The law is not yet fully developed as to how one can limit the duration of an easement. This appears from discussions in books such as Hinde McMorland & Sim, Land Law in New Zealand (Butterworths, Wellington, 1997) para 6.018. Various points are clear. One is that an easement must be the subject matter of a grant; the interest that is granted must be precise; and one must be able to know at any period of time whether the legal right exists or not. With a Torrens System easement, this is reinforced by the fact that the whole philosophy of the Real Property Act 1900 is that one must be able to see from the title deeds at any time just what are the rights and interests in the land. Just as there are difficulties with caveats etc that affect part of the land where there is no proper plan so there are also difficulties if a document presented to the Registrar General for registration as an easement does not properly define the length of time for which the easement endures so things are clear.
Apart from this it seems to be the law as is said in Tiffany, Real Property Volume 2, 2nd ed (Callaghan and Company, Chicago, 1920) p 1333:
“A right of way may, by the terms of the grant, be limited to certain seasons or persons, or even to a particular time of day. It may also be subject to interruption by reason of a particular use that may be made by the owner of the servient tenement”.
The main authorities for this decision are Hollins v Verney (1884) 13 QBD 304 and Collins v Slade (1874) 23 WR 199. It is thus possible to create an easement in a limited form, but the grant must clearly delineate it.
There are also situations involving grants which are obviously created to endure only so long as a particular purpose is subserved by their exercise and that come to an end automatically when they can no longer subserve such purpose. I am quoting from Tiffany (p 1363). The authorities for the proposition are mainly American such as Cotting v Boston 87 NE 205 (1905) (Mass), but the principle would seem to apply in this country. Tiffany takes the view it is far better to deal with these matters as rights of way that only endure for a particular time rather than rights of way that exist for all time and are then abandoned.
I do not think it is useful to look at this rather esoteric subject any further. Whichever way one looks at it, the present grant is too uncertain. The size and height of the current structure have to be recognised. Then there are the weasel words, "remain unaltered". Does this mean completely unaltered such as not even to change by a few millimetres? And then one also gets words "comprise only two residences". Whatever the extent of the rules as to the expression of easements, this grant falls outside it.
The authors of Bradbrook and Neave’s Easements and Restrictive Covenants refer to the decision of Young CJ in Eq in Duncan v Cliftonville as authority for the proposition that an easement may be limited in duration by the terms of a grant.[12] Apart from the authorities cited by Young CJ in Eq, there appears to be no other authority on this question.[13] For that reason, it is appropriate to examine those authorities.
[12] Adrian J Bradbrook and Susan V MacCallum, Bradbrook and Neave’s Easements and Restrictive Covenants (LexisNexis Butterworths, 3rd ed, 2011) at [1.3].
[13] Leaving aside other unspecified United States authorities referred to by Rugg J in Cotting v City of Boston - see [52] below.
Young CJ in Eq referred to Collins v Slade where Bacon VC held that under the terms of the grant the holder of the servient tenement was entitled to lock a gate so as to prevent passage through the right of way at night.[14] The decision supports the observation in Tiffany, Real Property, that a right of way may be restricted to a particular time of day. The decision is of no direct relevance other than as a further example of an easement that is qualified or restricted in a specified manner.
[14] (1874) 23 WR 199.
Young CJ in Eq also referred to Hollins v Verney.[15] The English Court of Appeal (comprising Brett MR and Lindley and Bown LJJ) held that intermittent use as of right, rather than with permission, may suffice to establish a right of way under the Prescription Act.[16] The holder of the dominant tenement used the right of way to transport wood cut on his land. That only occurred at intervals of some years. Their Lordships’ reasoning was not confined to the Prescription Act and thereby supports the suggestion made in Tiffany, Real Property that a right of way may operate on an intermittent basis to meet the needs of either the holder of the servient[17] or dominant[18] tenement. This case is simply another example of a limited easement.
[15] (1884) 13 QBD 304.
[16] 2&3 Wm 4, c.71.
[17] Collins v Slade.
[18] Hollins v Verney.
The decision of Rugg J[19] of the Supreme Judicial Court of Massachusetts in Cotting v City of Boston was also referred to with approval by Young CJ in Eq.[20] The subject easement had been created by a conveyance in 1817 where it was expressed as “reserving a free and uninterrupted passage leading from Court Street through the entry, staircase and scuttle, to the chambers of said Cotting’s store”. By virtue of a deed of conveyance executed in 1818 the easement had been continued using the words “with a privilege in the passage of the adjoining store for the purpose of passing and re-passing to the chambers of the store hereby conveyed”. The passage and staircase referred to in the 1817 and 1818 deeds were identical. Subsequent conveyances over the course of the 19th century maintained the easement in the terms stated in 1818.
[19] Rugg J subsequently served as Chief Justice of Massachusetts from 1911 until his death in 1938.
[20] 87 NE 205 (1909); 201 Mass 97 (1909).
The building that had been present on the dominant tenement in 1817 was demolished in 1898, following the statutory acquisition of the land by the City of Boston. A subway station was erected on the dominant tenement with offices on upper floors. The passage and stairway on the servient tenement connected to the second floor[21] of the new building, which comprised the offices of the railway company.
[21] The first floor in Australian usage.
The question before the Court was whether the right of way had been extinguished by the demolition of the old building located on the dominant tenement. Rugg J noted that the conveyance had identified the structure upon the land as “a store thereon standing” and limited the privilege of passage to “the purpose of passing and re-passing to the chambers of the store conveyed”. His Honour held that this language pointed particularly to the structure then existing. After examining the history of changes in usage of the word “chambers” over the 18th and 19th centuries in England and in the United States, Rugg J held that in 1817 or 1818 the use of “chambers” probably would not have been intended to include rooms devoted to general commercial purposes.
Rugg J noted, without citing any authority, that it had “frequently been decided that a right of way through a building, in the absence of plain words to the contrary, encumbers the servient estate only so long as the building exists described in the instrument creating the right of way”. His Honour observed that when the right of way was created the stairway was comparatively narrow and while suitable to the conditions then existing it “would be inconvenient for the purposes of a large structure near the business centre of a great city”. It could not have been intended by the parties that the servient estate would provide passage to the second floor of a multi-storey office building if the upper floors were serviced by “modern appliances” (i.e. lifts). Rugg J found that it had been the intention of the parties that the right of way would only continue so long as either of the buildings then in existence continued to stand. They had not intended to create a perpetual easement attached to the dominant tenement.
I respectfully accept that the law was correctly stated by Young CJ in Eq in Duncan v Cliftonville. I am ordinarily cautious about reliance upon United States authorities because of the divergence in the common law since that nation became independent from Great Britain. Nevertherless, like Young CJ in Eq, I am satisfied that the finding by Rugg J in Cotting v City of Boston that an easement may be temporally limited, is not inconsistent with the Australian approach to easements. It is clear from cases such as Collins v Slade, Hollins v Verney and Barry v Fenton that the nature and extent of the rights conferred by an easement may be limited. There seems no reason why the duration of an easement cannot also be limited. My conclusion is fortified by the view expressed in Bradbrook and Neave.
Deguisa v Lynn
The essential element of the system of Torrens title, continued under the Real Property Act, is the principle of indefeasibility of title expressed in s 69. As the High Court reiterated in Deguisa v Lynn, the Torrens system is one of title by registration rather than the registration of title.[22] The High Court also observed in Deguisa that it had previously held in Westfield Management Ltd v Perpetual Trustee Co Ltd[23] that:[24]
dealings recorded on the certificate of title, together with information appearing on the folio of the Register Book, provide a purchaser taking his or her title to land from the registered proprietor “with the information necessary to comprehend the extent or state of the registered title to the land in question” so that information extraneous to the certificate of title was immaterial to the indefeasibility of the purchaser’s title.
[22] [2020] HCA 39 at [4] (Kiefel CJ, Gageler, Keane, Gordon and Edelman JJ) referring to Frazer v Walker [1967] 1 AC 569 and Breskvar v Wall (1971) 126 CLR 376.
[23] (2007) 233 CLR 528 at [5].
[24] Ibid at [4].
The decision in Deguisa reaffirms that it is an essential element of the system of indefeasibility that the Register Book must contain a complete record of all matters affecting title to land registered under the Real Property Act.
The certificates of title for the land held by the applicants and by the respondent clearly identify the easement and its dimensions. The certificates also refer to the Memorial held in the General Register Office as part of the Register of Deeds. While the terms of the easement (as distinct from its dimensions) are not stated on the certificate of title, that information is recorded in the Memorial. Thus, the fact that the Memorial exists, and where it can be found, will readily be apparent to a person searching the Register Book. The Memorial is available for inspection and copying at the General Register Office. The Registrar-General in her separate legal capacity as Registrar-General of Deeds[25] has authority over the General Register Office, although since 2017 it has been administered by Land Services SA concurrently with the Lands Title Office.[26]
[25] See s 6 of the Registration of Deeds Act 1935 (SA). The public office of Registrar-General predates the Torrens System by some 17 years. The public office was created with effect from 1 December 1841 under Act No 8 of 1841 (5 Vic, c 8) entitled An Act to provide for the Registration of Deeds, Wills, Judgements and Conveyances, and other Instruments. The object of the Act was stated as being to “... prevent secret and fraudulent conveyances and to provide means whereby the title to real property may be more certainly known”.
[26] Land Services SA is a private sector entity that since 2017 has administered the Land Titles Office. The Registrar-General retains the legal powers and duties conferred upon her by the Real Property Act, the Registration of Deeds Act and other legislation but staff of Land Services SA carry out administrative tasks under her authority.
These facts are materially different to those considered by the High Court in Deguisa where the existence of a restrictive covenant had not been “notified on the original certificate of title”[27] as required by s 69 of the RPA but was only ascertainable by searching for material extraneous to the Register Book. Most importantly, in the case at bar the existence of the easement is unequivocally recorded on both of the relevant certificates of title and thus contained in the Register Book. Although the Memorial noted on the respective certificates of title is not, of itself, part of the Register Book, its existence and specific location in the General Register Office is clearly stated. Thus, the Memorial has been incorporated by reference into the Register Book in the sense referred to by Barwick CJ in Bursill Enterprises Pty Ltd v Berger Bros Trading Co Pty Ltd[28] and as endorsed by the High Court in Deguisa.[29] For that reason, I reject the suggestion advanced by the applicants in their supplementary written submissions that reference to the Memorial “cannot and does not override the applicants’ right of way easement”.
[27] The “original” certificate being the original copy of the current certificate held in the Register Book.
[28] (1971) 124 CLR 73 at 77-79.
[29] [2020] HCA 39 at [56], [69], [70].
For the preceding reasons, I am satisfied that the principle of indefeasibility applies to the easement as it has been expressed in the Memorial.
Barry v Fenton
The respondent contends that because there is no factual dispute that the right of way has been stopped up, the terms in which the easement has been expressed in the Memorial leave no doubt that it has come to an end of its own force. However, for the reasons stated at [71] to [74] below, I do not consider that submission to be consistent with the indefeasibility principle.
The question in Barry v Fenton was whether an easement that expressly permitted “vehicular traffic only” permitted passage by foot traffic.[30] The only issue before the High Court of New Zealand was the proper construction of the terms in which the easement had been expressed, i.e. what activity did the easement permit? North J held that the scope of the right of way must be determined exclusively by reference to the words used. On that basis, his Honour concluded that foot traffic was not permitted.
[30] [1952] NZLR 990.
It was not suggested in Barry v Fenton that the easement had come to an end. For that reason, it was not necessary for the Court to consider the principle of indefeasibility and the concomitant requirement that all matters affecting title to land be ascertainable from the Register Book.
I consider that Barry v Fenton is distinguishable. The only issue in that case was whether, on its true construction, the easement permitted passage by foot or was restricted to vehicular movement. The question of extinguishment did not arise.
Yip v Frolich
It is not suggested that the applicants have abandoned the easement, and counsel for the respondent submitted that the present matter is distinguishable from cases where the question of abandonment has arisen. However, because the respondent asserts that the easement no longer subsists, I consider it helpful to examine the approach taken by the courts to the abandonment question and the application of the principle of indefeasibility in that context.
In Yip v Frolich Besanko J determined the scope and proper construction of an easement and also the operation of s 90B.[31] The issue in Yip was whether an easement conferred a right of way or was merely a drainage easement. The defendant denied that there was any right of way and also contended that all rights under the easement had been abandoned. Besanko J found that there was only a drainage easement and not a right of way.
[31] (2003) 86 SASR 162.
Besanko J reviewed relevant authorities in the High Court, and in the Supreme Courts of New South Wales and Victoria. His Honour distinguished the terms of the RPA from the New South Wales legislation. In the latter case, s 89 of the Conveyancing Act 1919 (NSW) empowers the Supreme Court to order the extinguishment of an easement upon the ground, inter alia, that the easement has been abandoned. In applying that provision, the Court may have regard to the common law doctrine of abandonment.[32]
[32] Treweeke v 36 Wolseley Road Pty Ltd (1973) 128 CLR 274.
Besanko J also observed that the position in South Australia is closer to that under the Victorian legislation, although not identical. Under s 73 of the Transfer of Land Act 1958 (Vic) the Registrar of Titles is empowered to remove an easement from the Register Book where the easement has been extinguished or abandoned. In Riley v Penttila, Gillard J held that effect of s 73 of the Transfer of Land Act was as follows:[33]
The easement is notified as appurtenant to an estate in land described in a certificate of title. The certificate of title is conclusive evidence that the person named therein is the proprietor of such estate. The encumbrance of such easement on the servient tenement is created by the registration of the instrument of transfer and remains as an encumbrance on that title until it is removed pursuant to the Act by a successful application to the Registrar under s 73. Until this is done by the Registrar, then, in my opinion, no abandonment in fact will affect the conclusive evidence to be found in the certificate of title that the person named thereon is the owner of the estate in the dominant tenement to which the easement is stated therein to be appurtenant. In my opinion, that is the true effect of the decision in Webster v Strong.
[33] [1974] VR 547 at 574.
The same question was further considered by Tadgell J in Wolfe v Freijahs’ Holdings Pty Ltd[34] where his Honour stated that the effect of the decisions in Webster v Strong[35] and in Riley v Pentilla was that:
Each stands for the proposition that an easement notified on a certificate of title remains enforceable by the proprietor of the dominant tenement even though at common law it would be taken to have been abandoned; and see Bradbrook and Neave, Easements and Restrictive Covenants (1981), para 1916. The easement will therefore remain enforceable by the proprietor of the dominant tenement until it is removed pursuant to s 73 of the Transfer of Land Act 1958 (Vic). Those learned authors suggest that Riley v Penttila decides that registered easements over Torrens Title land in Victoria cannot be abandoned. This, if I may say so, is true only in a qualified sense, for s 73 itself expressly contemplates that a registered easement may be abandoned according to common law principles. It is when one seeks to find the consequences of an abandonment that one might strike a problem. It is perhaps more accurate to say that the abandonment by the registered proprietor of a dominant tenement or by his predecessors in title will not deprive him of the right to rely on the registered easement unless and until it is removed from the Register Book pursuant to s 73 or, perhaps, unless he has put it out of his power to rely upon it as against the proprietor of the servient tenement.
[34] [1988] VR 1017 at 1026.
[35] [1926] VLR 509.
After referring to the Victorian authorities, Besanko J held:[36]
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.
[36] (2003) 86 SASR 162 at [49].
Thereafter, Besanko J held:[37]
In my opinion, even if I was to find that the easement (or some of the rights under the easement) have been abandoned at common law, I would be bound to recognise and give effect to the conclusive nature of the title, and therefore the registered easement, unless and until it is removed from the title. In fact, I think it is the case that, under the RPA, the Registrar-General has no power to extinguish an easement if the proprietor of the dominant land objects (unless the Registrar-General is satisfied that the proprietor’s estate or interest in the dominant land will not be detrimentally affected by the extinguishment of the easement). It follows therefore that even if there was an outstanding application to the Registrar-General in this case I would not decline to grant equitable relief to the owner of the dominant land.
[37] Ibid [54].
An appeal to the Full Court against the orders made by Besanko J was dismissed.[38] The focus of the judgment of Bleby J in the Full Court (with Perry and Gray JJ agreeing) was on the finding by Besanko J as to the effect of the easement and whether his Honour had been entitled to rely upon the circumstances surrounding the creation of the easement when construing its terms. Bleby J did not refer to the finding by Besanko J that under the RPA only the Registrar‑General may extinguish an easement.
[38] Yip v Frolich (2004) SASR 467.
Indefeasibility
The effect of the submissions advanced by the respondent is that the easement has clearly come to an end on its own terms. That is because there is no factual dispute that it has been stopped up. Thus, the Court should give effect to the terms of the Memorial and find that the easement has been extinguished due to the occurrence of the defined event. In other words, while this was not part of the respondent’s submission, the factual situation is no different to that in Cotting v City of Boston but there it was necessary for the Court to determine whether the parties had intended the easement to be extinguished upon demolition of either of the relevant buildings. No such inquiry is necessary here as the terms of the Memorial are clear. However, for the reasons that follow, I reject that analysis.
The scheme of the RPA is that the Registrar-General has been given an express power in s 90B to vary or to extinguish easements in the circumstances referred to therein. The detailed and elaborate provisions included in the RPA for the extinguishment and variation of easements reflect the paramountcy of the principle of indefeasibility. Given that principle, I consider that I must adopt the same approach as that taken by Besanko J in Yip v Frolich. As his Honour said in that case, “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 …”.[39]
[39] (2003) 86 SASR 162 at [49].
While Besanko J was dealing with a contention that an easement had been abandoned, rather than being extinguished on its own terms, his Honour’s analysis was clearly founded upon the principle of indefeasibility of the registered title. That principle applies regardless of the cause of the alleged extinguishment. It would not be consistent with the indefeasibility principle, as affirmed by the High Court in Deguisa v Lynn, if a person searching the Register Book were required to make extraneous enquiries to determine whether a particular event had occurred so as to extinguish an easement.
The fundamental object of the RPA is to provide certainty of title. Thus, the Register Book, and it alone, will provide a purchaser “with the information necessary to comprehend the extent or state of the registered title of the land in question”.[40] It is no less inconsistent with the principle of indefeasibility that a prospective purchaser should be required to make inquiries extraneous to the Register Book to determine whether an easement had been stopped up as it is to require that a purchaser must seek extraneous information about the terms of the restrictive covenants contained in a common building scheme.[41] Accordingly, I find that the easement continues until such time as it removed from the respective certificates of title under s 90B of the RPA upon the Registrar-General being satisfied that the requirement of that section have been met.
[40] Westfield Management Ltd v Perpetual Trustee Co Ltd (2007) 233 CLR 528 at [5], Deguisa v Lynn [2020] HCA 39 at [4].
[41] As was the situation in Deguisa v Lynn.
Strike out
The applicants contend that each of paragraphs 3.3, 4.3,10 and 22 in the defence filed by the respondent should be struck out. Each of those paragraphs contains a denial that a right of way subsists over the relevant portion of the land of the respondent. I have found that until such time as the Registrar-General may exercise her power under s 90B of the RPA to remove the easement from the respective certificates of title the easement subsists. For that reason the paragraphs to which I have referred lack, in the words of Doyle J in Adelaide Brighton Cement v Hallett Concrete, “a proper basis because it is based upon an assertion for which there is no basis in the material available to the party”. For that reason, each of paragraphs 3.3, 4.3, 10 and 22 of the defence filed by the respondent must be struck out pursuant to r 70.3 of the UCR as they fail to disclose a reasonable defence.
Summary judgment against the cross claim
The essence of the cross claim filed by the respondent is that the applicants (or cross-respondents) are traversing his land in purported reliance upon a right of way that no longer exists. I have found that the latter question can only be decided by the Registrar-General under s 90B of the RPA. Until such time as she may exercise that power, the easement identified under respective certificates of title continues to exist. Accordingly, I find that there is no reasonable basis for the assertion that the applicants are trespassing on the land of the respondent. For that reason, I accept the contention of the applicants that they are entitled to summary judgment against the respondent’s cross claim.
Conclusion
For the preceding reasons, I will make orders to the following effect:
1.Paragraphs 3.3, 4.3, 10 and 22 of the defence filed by the respondent are struck out.
2.The respondent’s cross claim is summarily dismissed.
3
12
1