Fenwick v Wambo Coal Pty Ltd (No. 3)

In this case, the plaintiff sought to enforce a right of carriageway over the defendant's land. The defendant had rendered the existing right of way impassable, leading to a dispute over the relocation and extension of the right of way. The plaintiff claimed that the defendant was contractually bound to grant a registered easement for the relocation and extension. The plaintiff also argued that the defendant was estopped from denying the plaintiff's entitlement to the extended right of way and that the grant of the easement extended to the plaintiff's invitees and licensees. Additionally, the plaintiff sought to enforce the defendant's obligation to maintain a crossing over a creek on the route of the right of way.

The court was required to determine whether the defendant was contractually bound to grant a registered easement for the relocation and extension of the existing right of way. The court also had to decide whether the defendant was estopped from denying the plaintiff's entitlement to the extended right of way and whether the grant of the easement extended to the plaintiff's invitees and licensees. The court further needed to determine whether the defendant was under an obligation to maintain a crossing over a creek on the route of the right of way.

The court found that there was no contract for the relocation and extension of the right of way as there was no offer or acceptance leading to a contract, and there was no consideration for the variation of the right of way. However, the court held that the defendant was estopped from denying the plaintiff's entitlement to the extended right of way as the defendant had induced the plaintiff to assume or expect that he would be entitled to use the relocated and extended right of way. The court further found that the words in the grant mentioning the persons entitled to use the easement were illustrative and not restrictive, extending the grant to the plaintiff's invitees and licensees. Finally, the court held that the defendant was required to take all steps necessary, including obtaining approval, for the construction of a vehicular crossing at least as adequate as the crossing that existed before the culvert bridge was constructed.

The court ordered that the defendant was not contractually bound to grant a registered easement for the relocation and extension of the existing right of way. However, the court held that the defendant was estopped from denying the plaintiff's entitlement to the extended right of way, and the terms of the extension of the easement should follow the terms of the registered easement. The court further held that the grant of the easement extended to the plaintiff's invitees and licensees. Finally, the court ordered that the defendant was required to take all steps necessary, including obtaining approval, for the construction of a vehicular crossing at least as adequate as the crossing that existed before the culvert bridge was constructed.