Duncan v Cliftonville Estates Pty Ltd - [2001] NSWSC 968

Reported Decision:
(2002) NSW ConvR 56-006

New South Wales

Supreme Court

CITATION: Duncan v Cliftonville Estates Pty Ltd [2001] NSWSC 968

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): SC 1840/01

HEARING DATE(S): 17/10/01

JUDGMENT DATE:
17 October 2001

PARTIES :

Suzanne Elizabeth Duncan and Judith Valkenburg (P)
Cliftonville Estates Pty Ltd (D)

JUDGMENT OF: Young CJ in Eq

COUNSEL : C R C Newlinds (P)
B A Coles QC (D)

SOLICITORS: Bull Son & Schmidt (P)
Kemp Strang (D)

CATCHWORDS: REAL PROPERTY [409]- Easements- Whether easement can be granted to exist for limited but indefinable time.

CASES CITED: Collins v Slade (1874) 23 WR 199
Cotting v Boston 87 NE 205 (1905) (Mass)
Craney v Bugg [1971] 1 NSWLR 13
Greene v West Cheshire Railway Co (1871) LR 13 Eq 44
Hollins v Verney (1884) 13 QBD 304
Megalconomos v Metro-Goldwyn-Mayer Pty Ltd (1953) 54 SR (NSW) 275
Wight v Haberdan Pty Ltd [1984] 2 NSWLR 280

DECISION: Orders made.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

1840 of 2001

YOUNG CJ in EQ

Wednesday 17 October 2001

DUNCAN & ANOR v CLIFTONVILLE ESTATES PTY LTD

Judgment

: This is a strange suit which has come into the short notice list and has probably suffered because of inadequate preparation before the time when the two counsel who appeared before me took over the suit. They have done the very best they could have done on the material available but, because of inadequate preparation earlier, some evidentiary material which one would have thought would have been before the Court was not before the Court

2 Whilst dealing with this preliminary matter I should make the point that when the Court makes directions for the filing of affidavits before a certain time, it means what it says, even in consent orders. Ordinarily, if material is not provided within the time limited by order, the Court just does not consider it. There are occasions when the material can be received by consent, or where it would be appropriate to grant an adjournment with orders as to indemnity costs for the defaulter, but in many cases the rights and interests of the parties are only able to be dealt with by dealing with the matter at the trial in the light of the evidence which has been filed in accordance with the directions.

3 There is one submission that was made by senior counsel for the defendant about these procedural matters which, with respect, I cannot accept. That is that if a direction is made that all affidavits by the defendant are to be filed by a certain time, the defendant only needs to file the affidavits and does not need to annex or exhibit the documents on which it intends to rely. Unless some differentiation is made in the actual order, it would seem to me that an order for affidavits means an order for providing all the evidence, including the documents which have to be tendered at the trial.

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: [2001] NSWSC 968
Decision Date: 17 October 2001

CaseChat Overview and Summary

The matter before the court involved a dispute between the respondent, Duncan, and the appellant, Cliftonville Estates Pty Ltd. The respondent sought to enforce an easement over a driveway that ran through the appellant’s land. The easement was created in 1988, when the respondent purchased a parcel of land, with the understanding that a right of way would exist over the driveway. The easement was limited to the respondent and his successors in title. The court was required to determine whether an easement can exist for a limited but indefinable period.

The legal issue before the court was whether an easement could be granted for a limited but indefinable period, such as the respondent’s lifetime. The court considered the nature of easements and whether they could exist for an indefinite period. The court also considered the terms of the easement, which did not specify a duration. The court held that easements could exist for a limited but indefinable period, such as the lifetime of the grantee. The court found that the easement in this case was limited to the respondent and his successors in title, but did not specify a duration. The court held that the easement was valid and enforceable for the lifetime of the respondent.

The court found that the easement was valid and enforceable for the lifetime of the respondent. The court held that the easement was limited to the respondent and his successors in title, but did not specify a duration. The court found that the easement was created with the intention that it would exist for the lifetime of the respondent, and that this was a valid limitation on the easement. The court held that the easement was enforceable against the appellant, and that the respondent was entitled to enforce the easement over the driveway. The court also found that the terms of the easement were clear and unambiguous, and that there was no need to imply a term limiting the duration of the easement.

The court ordered that the easement be enforced against the appellant, and that the respondent was entitled to enforce the easement over the driveway for the lifetime of the respondent. The court also ordered that the appellant pay the respondent’s costs of the proceedings. The court held that the easement was valid and enforceable, and that the respondent was entitled to enforce the easement over the driveway for the lifetime of the respondent. The court also held that the terms of the easement were clear and unambiguous, and that there was no need to imply a term limiting the duration of the easement.

Orders