Court of Appeal
Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: Dickson v Petrie [2025] NSWCA 110 Hearing dates: 20 February 2025 Date of orders: 23 May 2025 Decision date: 23 May 2025 Before: Stern JA at [1];
Ball JA at [14];
Griffiths AJA at [15]Decision: (1) The appeal be allowed in part.
(2) The cross-appeal be dismissed.
(3) Orders 1, 2 and 3 dated 29 August 2024 be set aside and in lieu thereof:
Declare that, upon its proper construction, the Easement provided for in the s 88B Instrument registered on 16 December 2003 is valid and enforceable and provides the owners of the dominant tenement with sole use and enjoyment of:
(a) Area X marked on DP 1062948 for the purposes of gardening, paving and landscaping and storage of equipment as provided for in cl 1 of that Instrument; and
(b) the garden shed which has been built within Area X, for the purposes of storage and laundry use as provided for in cll 2, 3 and 4 of the Instrument,
subject to the limitations in the Easement.
(4) The orders dated 23 October 2024 be set aside and in lieu thereof there be no order as to the costs of the proceedings below.
(5) Order the respondent to pay 50% of the appellants’ costs of the appeal and the cross-appellant to pay 50% of the cross-respondents’ costs of the cross-appeal.
(6) The notice of objection to competency filed 10 October 2024 be dismissed, with no order as to costs.
Catchwords: LAND LAW — easements — construction of easements — general principles of construction — relevance of concept of “reasonable use” to task of construction — whether easement confers on dominant owners exclusive rights to use subject land for stated purposes — consideration of extent of rights retained by servient owner
LAND LAW — easements — validity of easements — whether easement capable of forming subject matter of grant — where easement confers on dominant owners exclusive rights to use land for stated purposes — whether dominant owners’ rights inconsistent with servient owner’s possession and proprietorship of servient tenement
Legislation Cited: Conveyancing Act 1919 (NSW), ss 88B, 89
Supreme Court Act 1970 (NSW), s 101
Uniform Civil Procedure Rules 2005 (NSW), r 51.41
Cases Cited: Aussie Skips Recycling Pty Ltd v Strathfield Municipal Council (2020) 103 NSWLR 834; [2020] NSWCA 292
Barter v Theunissen [2024] NSWSC 326; 21 BPR 44,697
Batchelor v Marlow [2003] 1 WLR 764
Clos Farming Estates Pty Ltd v Easton [2001] NSWSC 525; 10 BPR 18,845
Clos Farming Estates Pty Ltd v Easton [2002] NSWCA 389; 11 BPR 20,605
Copeland v Greenhalf [1952] Ch 488
CurrumbinInvestments Pty Ltd v Body Corp Mitchell Park Cts [2012] 2 Qd R 511; [2012] QCA 9
Gallagher v Rainbow (1994) 179 CLR 624; [1994] HCA 24
Harada v Registrar of Titles [1981] VR 743
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- AGLC
- Dickson v Petrie [2025] NSWCA 110
- Case
- [2025] NSWCA 110
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were: first, the proper construction of the easement, particularly whether it granted exclusive rights to the dominant owners for the stated purposes, and second, whether the easement was valid and capable of forming the subject matter of a grant, considering whether the rights conferred were inconsistent with the servient owner's possession and proprietorship of the servient tenement. The court was required to determine the extent to which the concept of "reasonable use" informed the construction of the easement and whether the dominant owners' rights amounted to exclusive possession.
The Court of Appeal reasoned that the task of construction involved interpreting the easement in accordance with its terms, considering the ordinary meaning of the words used and the context of the grant. The court found that while the easement granted significant rights to the dominant owners, including sole use and enjoyment of specific areas for gardening, paving, landscaping, and storage, and the use of a garden shed for storage and laundry, these rights were not so extensive as to amount to exclusive possession of the servient tenement. The court held that the easement was valid and enforceable, subject to the limitations expressly provided within its terms, and that the servient owner retained residual rights consistent with proprietorship.
The appeal was allowed in part, and the cross-appeal was dismissed. The court declared that the easement was valid and enforceable, granting the owners of the dominant tenement sole use and enjoyment of Area X for gardening, paving, landscaping, and storage of equipment, and the garden shed for storage and laundry use, subject to the limitations in the Easement. Orders regarding costs were made, with the respondent to pay 50% of the appellants’ costs of the appeal and the cross-appellant to pay 50% of the cross-respondents’ costs of the cross-appeal. The notice of objection to competency was dismissed.
Orders
Orders of the court
(1) The appeal be allowed in part.
(2) The cross-appeal be dismissed.
(3) Orders 1, 2 and 3 dated 29 August 2024 be set aside and in lieu thereof:
Declare that, upon its proper construction, the Easement provided for in the s 88B Instrument registered on 16 December 2003 is valid and enforceable and provides the owners of the dominant tenement with sole use and enjoyment of:
(a) Area X marked on DP 1062948 for the purposes of gardening, paving and landscaping and storage of equipment as provided for in cl 1 of that Instrument; and
(b) the garden shed which has been built within Area X, for the purposes of storage and laundry use as provided for in cll 2, 3 and 4 of the Instrument,
subject to the limitations in the Easement.
(4) The orders dated 23 October 2024 be set aside and in lieu thereof there be no order as to the costs of the proceedings below.
(5) Order the respondent to pay 50% of the appellants’ costs of the appeal and the cross-appellant to pay 50% of the cross-respondents’ costs of the cross-appeal.
(6) The notice of objection to competency filed 10 October 2024 be dismissed, with no order as to costs.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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