Eddy Gross v Graham Leslie Greer - [2018] NSWSC 1572

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Eddy Gross v Graham Leslie Greer & Anor [2018] NSWSC 1572
Hearing dates: 2-3 October 2018
Date of orders: 17 October 2018
Decision date: 17 October 2018
Jurisdiction: Equity - Real Property List
Before: Rein J
Decision:
See [28]-[29], [32]-[33], [39], [43]

Catchwords: REAL PROPERTY – easements – right of carriageway – where land is subdivided but the deposited plans are not updated to reflect the benefit and burden of the right of carriageway in respect of the newly created lots – whether one of the newly created lots is entitled to the benefit of a right of carriageway – whether there is an easement pursuant to the requirements of s 88(1) of the Conveyancing Act 1919 (NSW) – whether extrinsic evidence is relevant to construing the instrument said to give rise to the easement – whether the transfer of a small portion of neighbouring land, which had the benefit of the easement, created an easement in favour of the transferee – whether there was an equitable easement – proprietary estoppel; HELD: easement did not comply with s 88(1) of the Conveyancing Act 1919 (NSW) – extrinsic material sought to be relied on in construing the relevant instrument inadmissible – transfer of neighbouring land did not result in an easement in favour of the transferee – basis for estoppel not established.
Legislation Cited: Real Property Act 1900 (NSW)
Conveyancing Act 1919 (NSW)
Cases Cited: Buchholz v Kempsey Shire Council [2005] NSWSC 235
Chiu v Healey (2003) 11 BPR 21,241
Crabb v Arun District Council [1976] Ch 179
Dewhirst v Edwards [1983] 1 NSWLR 34
Gallagher v Rainbow & Ors (1994) 179 CLR 624
Goodwin v Papadolpulos (1985) NSW ConvR 55-256
McDonald v Peddle (1923) 42 NZLR 987
Papadopoulos v Goodwin [1982] 1 NSWLR 413
Parramore v Duggan (1995) 183 CLR 633
Re Maiorana and the Conveyancing Act [1970] 1 NSWR 627
Rixon v Horseshoe Pastoral Co Pty Ltd [2017] NSWSC 1293
Sidhu v Van Dyke (2014) 251 CLR 505
Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387
Westfield Management Ltd v Perpetual Trustee Company Ltd (2007) 233 CLR 528
Willmott v Barber (1880) 15 Ch D 96
Texts Cited: Bradbrook & Neave’s Easements and Restrictive Covenants (A. J Bradbrook & S. V MacCallum, Butterworths, 3rd ed, 2011, LexisNexis)
Butt’s Land Law (B Edgeworth, Thomson Reuters, 7th ed, 2017)
Gale on Easements (Sweet & Maxwell, 20th ed, 2017)
Category: Principal judgment
Parties: Eddy Gross (Plaintiff)
Graham Leslie Greer (First Defendant)
Lisa Maree Greer (Second Defendant)
Representation:
Counsel:
P. O'Loughlin (Plaintiff)
C. Cassimatis (Defendants)
Solicitors:
MBT Lawyers (Plaintiff)
Jason McClung Solicitor (Defendants)

File Number(s): 2018/00029724
Publication restriction: Nil

Reasons for Judgment

Background

These proceedings concern adjoining properties in Coffs Harbour – one known as Lot 21 (also known as 266 Shepherd’s Lane) and the other known as Lot 63 (also known as 266A Shepherd’s Lane). The Plaintiff, Mr Eddy Gross, owns Lot 21 and Mr and Mrs Greer, the Defendants,…

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: [2018] NSWSC 1572
Decision Date: 17 October 2018

CaseChat Overview and Summary

In the case of Eddy Gross v Graham Leslie Greer, the dispute centred around the rights of easement over a piece of land. The matter was heard and determined in the Supreme Court of New South Wales. The plaintiff, Eddy Gross, sought to establish a right of carriageway over land owned by the defendant, Graham Leslie Greer. The crux of the issue was whether the easement, originally established over the land, extended to a newly created lot on the subdivided property, and if the legal and equitable requirements for such an easement were met.

The legal issues before the court involved the interpretation of the easement as described in the deposited plans, the applicability of section 88(1) of the Conveyancing Act 1919 (NSW) to the facts of this case, and the admissibility of extrinsic evidence in determining the scope of the easement. Additionally, the court had to consider whether the transfer of a portion of neighbouring land, which had the benefit of the easement, automatically conferred an easement on the transferee, and whether an equitable easement could be established based on proprietary estoppel.

The court found that the easement as described in the deposited plans did not comply with the statutory requirements outlined in section 88(1) of the Conveyancing Act 1919 (NSW). The judge held that extrinsic evidence was inadmissible for the purpose of interpreting the instrument that was supposed to create the easement. The transfer of the neighbouring land did not result in an easement in favour of the transferee, as the necessary legal criteria were not met. Furthermore, the plaintiff failed to establish the basis for an equitable easement through proprietary estoppel. Consequently, the plaintiff's claims were dismissed.

The Supreme Court of New South Wales ruled that the easement did not extend to the newly created lot, and no equitable easement was established. The court made no orders for costs.

Orders