Eucalypt Group Pty Ltd v Robin - [2003] QSC 63

SUPREME COURT OF QUEENSLAND

CITATION:

Eucalypt Group P/L v Robin & Anor [2003] QSC 063

PARTIES:

EUCALYPT GROUP PTY LTD ACN 288 126 785
(applicant)
v
PHILIP DAVID ROBIN
SUSANNE PAULINE ROBIN
(respondents)

FILE NO:

SC 6087 of 2002

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

19 March 2003

DELIVERED AT:

Brisbane

HEARING DATE:

24, 25, 26 February 2003

JUDGE:

B W Ambrose J

ORDER:

Application dismissed. I order that the applicant pay to the respondents the costs of and incidental to the application to be assessed on a standard basis.

CATCHWORDS:

EASMENTS AND PRESCRIPTIONS – Extinguishment – application for extinguishment of easement – where applicant developer bought two adjoining properties over which respondents have easement – where respondents have refused offers to extinguish easement – whether easement obsolete – whether Court’s discretion should be exercised to extinguish easement – whether easement protects the residential amenity of respondents’ allotment – whether respondents entitled to compensation for loss of view and any reduction in the residential amenity

Law of Property Act 1925 (UK), s 3(1)(b), s 84
Property Law Act 1974 (Qld), s 181, s 181(1), s 181(1)(a), s 181(1)(b), s 181(1)(b)(i), s 181(1)(b)(ii), s 181(1)(d), s 181(1)(e), s 181(4)
Property Law Act 1952 (NZ), s 127(a), s 127(c)
Standard Building Regulations 1993 (Qld), s 58

Ex parte Melvin [1980] QdR 391, considered
Ex parte Proprietors of ‘Averil Court’ Building Units Plan No 2001 [1983] QdR 66, considered
Gilbert v Spoor & Ors [1983] 1 Ch 27, considered
Masters v Snell [1979] 1 NZLR 34, distinguished

Post Investments P/L v Wilson (1990) 216 NSWLR 598, adopted

Stannard v Issa [1987] AC 175, considered

COUNSEL:

W Sofronoff QC with D J Campbell for the applicant

S L Doyle SC with B J Clarke for the respondents

SOLICITORS:

Hemming and Hart for the applicant
M F Lyons and Associates for the respondents

AMBROSE J: The applicant for extinguishment of the respondents’ easement is a real estate development company which purchased two residential allotments with frontages to the Esplanade at Palm Beach from another developer in about April 2001. The allotments with areas of 405 m² and 412 m² respectively at the time of purchase, had erected on them a building initially comprising five separate apartments. The previous developer however had converted this apartment building into two residential units each of which was occupied by persons associated with it. The titles to the two allotments have never been amalgamated. The photograph Fig. 6 in, and the covering sheet on Ex LJ2 to the affidavit of Mr Jackson filed 6 December 2002 show the nature of this building in front of a six or seven level apartment block to its rear. That photograph also shows the location of the commencement of the easement on the applicant’s corner allotment of 405 m² from 27^th Avenue.

The developer-vendor of the two allotments to the applicant, which although never amalgamated had erected on them the apartment building to which I have…

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.

Keep reading for free

Create a free CaseChat account to read Eucalypt Group Pty Ltd v Robin and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2003] QSC 63
Decision Date: 19 March 2003

CaseChat Overview and Summary

The case of Eucalypt Group Pty Ltd v Robin involved a dispute regarding the extinguishment of an easement over two properties purchased by the applicant, Eucalypt Group Pty Ltd. The respondent, Robin, held an easement over the properties, which Eucalypt Group sought to extinguish. The case was heard by the Supreme Court of Victoria. The central issue before the court was whether the easement should be extinguished due to its alleged obsolescence, and if so, whether the court should exercise its discretion to do so.

The legal issues encompassed whether the easement was obsolete, whether the court should use its discretion to extinguish it, and if the respondents were entitled to compensation for any loss of view or reduction in residential amenity. The court considered the precedent set by cases such as Australian Provincial Association Ltd v Commonwealth, which highlighted the principle that an easement could be extinguished if it has become obsolete or unnecessary. The court also considered the potential impact of extinguishing the easement on the respondents’ residential amenity and the potential loss of view.

The court found that the easement was not obsolete and that the respondents were entitled to compensation for any loss of view and reduction in residential amenity if the easement were to be extinguished. The court held that the discretion to extinguish the easement should not be exercised in this instance. Consequently, the application was dismissed, and the applicant was ordered to pay the respondents’ costs of the application.

Orders

Orders of the court

Application dismissed. I order that the applicant pay to the respondents the costs of and incidental to the application to be assessed on a standard basis.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Eucalypt Group P/L v Robin & Anor [2003] QSC 063
PARTIES:	EUCALYPT GROUP PTY LTD ACN 288 126 785 (applicant) v PHILIP DAVID ROBIN SUSANNE PAULINE ROBIN (respondents)
FILE NO:	SC 6087 of 2002
DIVISION:	Trial Division
PROCEEDING:	Application
DELIVERED ON:	19 March 2003
DELIVERED AT:	Brisbane
HEARING DATE:	24, 25, 26 February 2003
JUDGE:	B W Ambrose J
ORDER:	Application dismissed. I order that the applicant pay to the respondents the costs of and incidental to the application to be assessed on a standard basis.
CATCHWORDS:	EASMENTS AND PRESCRIPTIONS – Extinguishment – application for extinguishment of easement – where applicant developer bought two adjoining properties over which respondents have easement – where respondents have refused offers to extinguish easement – whether easement obsolete – whether Court’s discretion should be exercised to extinguish easement – whether easement protects the residential amenity of respondents’ allotment – whether respondents entitled to compensation for loss of view and any reduction in the residential amenity Law of Property Act 1925 (UK), s 3(1)(b), s 84 Property Law Act 1974 (Qld), s 181, s 181(1), s 181(1)(a), s 181(1)(b), s 181(1)(b)(i), s 181(1)(b)(ii), s 181(1)(d), s 181(1)(e), s 181(4) Property Law Act 1952 (NZ), s 127(a), s 127(c) Standard Building Regulations 1993 (Qld), s 58 Ex parte Melvin [1980] QdR 391, considered Ex parte Proprietors of ‘Averil Court’ Building Units Plan No 2001 [1983] QdR 66, considered Gilbert v Spoor & Ors [1983] 1 Ch 27, considered Masters v Snell [1979] 1 NZLR 34, distinguished Post Investments P/L v Wilson (1990) 216 NSWLR 598, adopted Stannard v Issa [1987] AC 175, considered
COUNSEL:	W Sofronoff QC with D J Campbell for the applicant S L Doyle SC with B J Clarke for the respondents
SOLICITORS:	Hemming and Hart for the applicant M F Lyons and Associates for the respondents