Dresdner v Scida - [2003] NSWSC 957

Reported Decision:
(2004) NSW ConvR 56-089

Supreme Court

CITATION: Dresdner v Scida [2003] NSWSC 957

HEARING DATE(S): 9/10/03

JUDGMENT DATE:
31 October 2003

JURISDICTION:
Equity Division

JUDGMENT OF: Burchett AJ at 1

DECISION: 1) The plaintiffs held entitled to a declaration and injunctive relief, with an order for their costs; 2) The cross-claim to be dismissed with costs; 3) The plaintiffs directed to bring in, on a date to be fixed, short minutes of orders appropriate to reflect the reasons of the Court.

CATCHWORDS: EASEMENT - right of carriage way - creation - Torrens title land - whether words of limitation were required - short form reservation under s 181A of the Conveyancing Act 1919 - whether context negatived use of short form - effect of s 3(b) of the Real Property Act 1900 - meaning of "appurtenant" - indefeasibility of title to easement - effect of s 88 of Conveyancing Act - obstruction by erection of gates and other structures - test for relief.

LEGISLATION CITED: Conveyancing Act 1919
Fair Trading Act 1987
Real Property Act 1900

CASES CITED: Carlson v Carpenter (1998) NSW ConvR 56,635
Carroll v Chew (1946) 47 SR (NSW) 229
Chiu v Healey [2003] NSWSC 857
Finlayson v Campbell (1997) NSW ConvR 56,449
Gapes v Fish (1927) VLR 88
Hansford v Jago [1921] 1 Ch 322
Keefe v Amor [1965] 1QB 334
Lister v Pickford (1865) 34 Beav. 576; 55 ER 757
Owners Corporation - Strata Plan No 8450 v Owners Corporation - Strata Plan No 54547 [2002] NSWSC 780
Parramore v Duggan (1995) 183 CLR 633
Pettey v Parsons [1914] 2 Ch. 653
Powell v Langdon (1944) 45 SR(NSW) 136
Sinclair v Jut (1996) 9 BPR 16,219
Vaneris v Kemeny (1977) 1 BPR 9655

PARTIES :
Heinz Dresdner (1st Plaintiff)
Lily Dresdner (2nd Plaintiff)
Ramond David Dresdner (3rd Plaintiff)
Marion Erica Dresdner (4th Plaintiff)
Anita Zweig (5th Plaintiff)
Ronald William Zweig (6th Plaintiff)
Evelyn Irene Krieger (7th Plainitff)
Giuseppe Scida (1st Defenant)
Rosalba Scida (2nd Defendant)
Vincenzo Scida (3rd Defendant)
Kitty-Ann Scida (4th Defendant)

FILE NUMBER(S): SC 4761/03

COUNSEL: J Kelly S.C and T Duggan (Plaintiffs)
J Van Aalst (Defendants)

SOLICITORS: Abadee, Dresdner & Freeman (Plaintiffs)
T S Curran (Defendants)

- 12 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BURCHETT AJ

31 OCTOBER 2003

4761/03 DRESDNER v SCIDA

JUDGMENT

1 BURCHETT AJ: The plaintiffs seek relief against the defendants for what they claim is a serious obstruction of a right of carriage way. The defendants deny the validity of the right, and deny, too, the reality of the obstruction, which arises out of the erection of structures including closed but unlocked gates, and the taking of certain actions associated with the installation and maintenance of the gates. A cross-claim has been brought for declaratory relief and for the extinguishment of the easement.

2 The alleged right of carriage way has been exercised for many years. It relates to a strip along a boundary of the defendants’ land, surfaced…

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.

Continue reading Dresdner v Scida

Details

AGLC: Dresdner v Scida [2003] NSWSC 957
Case: [2003] NSWSC 957
Decision Date: 31 October 2003

CaseChat Overview and Summary

The case of Dresdner v Scida was heard in the Supreme Court of New South Wales. The dispute involved a right of carriage way over a strip of land, which was conveyed through Torrens title. The primary issue was whether certain words of limitation were necessary for the creation of this right of carriage way. The dispute also centred around the interpretation of a short form reservation under section 181A of the Conveyancing Act 1919, and whether the context of the document negated the use of this short form. Another key issue was the meaning of "appurtenant" in the context of the easement, as well as the effect of section 3(b) of the Real Property Act 1900. The court also had to consider the indefeasibility of title to the easement and the effect of section 88 of the Conveyancing Act. The final issue pertained to the obstruction of the easement by the erection of gates and other structures and the test for relief in such circumstances.

The court examined the language of the document and the surrounding context to determine whether the short form reservation was appropriate. It found that the use of the short form was valid and not negated by the context. The court also clarified the meaning of "appurtenant" in the context of the easement, holding that it referred to the right attaching to the land and not to the individual owner. The court further held that the indefeasibility of title to the easement did not prevent the court from considering the validity of the easement itself. The court also noted that the obstruction of the easement by the erection of gates and other structures could potentially be remedied by an injunction or other form of relief, depending on the circumstances of the case.

The Supreme Court of New South Wales held that the right of carriage way was validly created and that the short form reservation was appropriate in the circumstances. The court found that the easement was appurtenant to the land and not to the individual owner, and that the indefeasibility of title did not prevent the court from considering the validity of the easement itself. The court also held that relief could be granted if the obstruction of the easement by the erection of gates and other structures was found to be unjustified. The final orders of the court will depend on the outcome of any further proceedings in relation to the obstruction of the easement.

Orders