Destri Enterprises Pty Ltd v Donald James Maxwell - [2012] NSWSC 295

Supreme Court

New South Wales

Medium Neutral Citation: Destri Enterprises Pty Ltd & Ors v Donald James Maxwell [2012] NSWSC 295
Hearing dates: 21, 22 & 23 November 2011
Decision date: 30 March 2012
Jurisdiction: Equity Division
Before: Slattery J
Decision:
Summons dismissed. Direction given for submissions as to costs.

Catchwords: REAL PROPERTY - Torrens Title - easement - application to extinguish - Conveyancing Act 1919, s 89 - in 1977 a 20 metre wide right of carriage way was created over rural land - dominant tenement has alternative access to main highway - original purpose of right of carriageway is obscure - whether circumstances warrant extinguishment or modification of right of carriageway under Conveyancing Act, s 89(1)(a), (b) or (c) - HELD - no basis to extinguish or modify the easement under Conveyancing Act, s 89.
Legislation Cited: Conveyancing Act 1919 (NSW), s 89
Conveyancing (General) Regulation 2008 (NSW), regs 53, 54 and 55
Real Property Act 1900 (NSW)
Cases Cited: Armishaw v Denby Horton (NZ) Ltd [1984] 1 NZLR 44
Bullard v Harrison (1815) 105 ER 877 (KB) Campbell v Baigent (2010) 15 BPR 28,959
Bulstrode v Lambert [1953] 1 WLR 1064 Castagna v Great Wall Resources Pty Ltd (2005) 12 BPR 23,363
Chiu v Healey (2003) 11 BPR 21,241
Durian (Holdings) Pty Ltd v Cavacourt Pty Ltd [2000] 10 BPR 18,099
Frasers Lorne Pty Ltd v Joyce Goldsworthy Burke & Ors [2008] NSWSC 743
Grill v Hockey (1991) 5 BPR 11,421
Heaton v Loblay (1960) SR (NSW) 332
Jones v Pritchard [1908] 1 Ch 630
In re Truman, Hanbury, Buxton & Company Ltd's Application [1956] 1 QB 261
Mantec Thoroughbreds Pty Ltd (2009) 25 VR 507
Markos v OR Autor Pty Ltd [2007] NSWSC 810
Pieper v Edwards (1982) 1 NSWLR 336
Proprietors Strata Plan No 9,968 v Proprietors Strata Plan No 11,173 [1979] 2 NSWLR 605
Re Ghey & Galton's Application [1957] 2 QB 650
Re Mason and the Conveyancing Act (1960) 78 WN (NSW) 925
Re Roseblade; Re Foenander [1964 -5] NSWR 2044 at [2046]
The Owners of SP 48754 v Anderson [1999] NSWSC 580
Treweeke v 36 Wolseley Road Pty Ltd (1973) 128 CLR 274
Tujilo v Watts (2005) 12 BPR 23,257
Webster v Bradac (1993) 5 BPR 12,032
Williams v Usherwood (1981) 45 P & Cr 235
Texts Cited: Bradbrook & Neave "Easements and Restrictive Covenants In Australia" Butterworths 2nd Ed, 2000 at [19.27]
Category: Principal judgment
Parties: First Plaintiff:- Destri Enterprises Pty Ltd
Second Plaintiff:- Brian Noonan
Third Plaintiff:- Lorraine Noonan
Fourth Plaintiff:- David George
Fifth Plaintiff:- Joanne George
Sixth Plaintiff:- Noel Delforce
Defendant:- Donald James Maxwell
Representation: Plaintiffs:- F.F.F. Salama
Defendant:- G. Ng
Plaintiffs:- R. Alamein, Heidtman & Co Lawyers
Defendant:- Richard Barron, Richard Barron Lawyer

File Number(s): 2010/237862
Publication restriction: No.

Judgment

In 1808, the novelist, playwright and poet, Sir Walter Scott, published his poem about the romantic knight, Lochinvar. Scott's work had contemporary influence in Australia. In 1823 Leslie Duguid, one of the founding…

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.

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Details

Case: [2012] NSWSC 295
Decision Date: 30 March 2012

CaseChat Overview and Summary

The case of Destri Enterprises Pty Ltd v Donald James Maxwell involved a dispute regarding the validity and potential extinguishment of an easement over rural land. The plaintiff, Destri Enterprises Pty Ltd, sought to extinguish or modify a 20-metre wide right of carriageway that was established over their land in 1977, which was initially intended to benefit a dominant tenement. The easement was registered under Torrens title, and the primary issue before the court was whether the circumstances warranted the extinguishment or modification of the right of carriageway under section 89 of the Conveyancing Act 1919.

The legal issues centred on whether the original purpose of the right of carriageway had been fulfilled or if the circumstances had changed in such a way that the easement was no longer necessary or had become obsolete. The plaintiff argued that the dominant tenement now had alternative access to the main highway, rendering the easement obsolete and unnecessary. The court had to consider the criteria under section 89(1)(a), (b), and (c) of the Conveyancing Act, including whether the easement had been rendered obsolete by changes in circumstances or if it had been permanently and irrevocably rendered incapable of fulfilling its original purpose.

In delivering the judgment, the court found that there was no basis to extinguish or modify the easement under section 89 of the Conveyancing Act. The court held that the easement had not been rendered obsolete or incapable of fulfilling its original purpose, despite the dominant tenement having alternative access to the main highway. The court determined that the original purpose of the easement, although somewhat obscure, had not been fully realised, and therefore, it could not be extinguished or modified under the provisions of the Act. The court emphasised the importance of the original purpose and the need for a clear demonstration of obsolescence or impossibility of fulfilling that purpose before an easement could be extinguished or modified.

Orders