Davey v Colovic

In the matter of Davey v Colovic, the applicants sought orders to strike out specific paragraphs from the respondent's defence and the respondent's cross-claim. The applicants argued that the existence of a right of way over the respondent's land was a matter for the Registrar-General to determine under section 90B of the Real Property Act 1900 (SA), or alternatively, they sought judgment or summary judgment in their favour regarding the respondent's cross-claim. The dispute centred around the interpretation and existence of a right of way easement over the respondent's land, which the applicants claimed encroached upon their property.

The central legal issues before the court were whether the court could determine the extinguishment of a limited duration easement or if such a decision was solely within the purview of the Registrar-General, and whether the determination should be made at the interlocutory stage or deferred until the trial. Additionally, the court needed to ascertain whether the right of way easement could contain a term limiting its duration and if such an easement could only be extinguished by the Registrar-General under section 90B of the RPA.

The court held that an easement could indeed be created in a limited form if it was clearly delineated in the grant. The court found that the easement in question was too uncertain due to vague terms such as "remain unaltered" and "comprise only two residences," rendering the grant ineffective. The court also determined that the issue of whether the easement had been extinguished could be decided by the court, rather than being exclusively within the Registrar-General's jurisdiction. Consequently, the court struck out the specified paragraphs of the respondent's defence and the cross-claim, finding that the applicants were entitled to judgment in their favour.

The final orders included striking out paragraphs 3.3, 4.3, 10, and 22 of the respondent’s defence, as well as the respondent’s cross-claim. Additionally, the court entered judgment in favour of the applicants regarding the respondent's cross-claim, with the respondent to pay the applicants' costs of the application.