Fernance v Simpson - [2003] NSWSC 121

No judgment structure available for this case.

CITATION: Fernance v Simpson [2003] NSWSC 121

HEARING DATE(S): 17 and 18 December 2002, 12, 13 February 2003

JUDGMENT DATE:
5 March 2003

JURISDICTION:
Equity Division

JUDGMENT OF: Windeyer J at 1

DECISION: Declarations as to entitlement to rights of way

CATCHWORDS: REAL PROPERTY - easements - easement by prescription - lost modern grant - 20 years uninterrupted use - ownership in estate of person who died in 1885 - capacity to grant an easement - acquiescence - requirement of knowledge - whether constructive knowledge sufficient - onus of proof

LEGISLATION CITED: Local Government Act 1993, s,700, s710, s713, s715
Probate Act 1890
Real Property Act 1900, s14A
Wills Probate and Administration Act 1898, s45, s61

CASES CITED: Bridle v Ruby [1989] 1 QB 169
Dalton v Angus (1881) 6 App Cas 740
Delohery v Permanent Trustee Company of New South Wales (1904) 1 CLR 283
Diment v N.H. Foot Ltd [1974] 1 WLR 1427
Gangemi v Watson (1994) 7 WAR 505
Hamilton v Joyce [1984] 3 NSWLR 279
Palk v Shinner (1852) 18 QB 568
Pugh v Savage [1970] 2 QB 373
Tehidy Minerals Limited v Norman [1971] QB 552
Union Lighterage Co v London Graving Dock Co [1902] 2 Ch 557
Cheshire & Burns Modern Law of Property 15th Ed p543
Conveyancer and Property Lawyer Vol 50 p356; Vol 53 p261
Gale on Easements 16th Ed para 4-79 et seq
Jackson on The Law of Easements and Profits p113
Megarry & Wade, The Law of Real Property, 3rd Ed 1966 at 837; 6th Ed p1118

PARTIES :
Robert John Fernance and Christine Fernance (First Plaintiffs)
Hugh Gordon Randall and Anne Randall (Second Plaintiffs)
Kristine Robin Hansen (Third Plaintiff)
Damien James Simpson and Robyn Anne Simpson (First Defendants)
McKenzie Holdings Pty Ltd (Second Defendant)
Registrar-General of New South Wales (Third Defendant)

FILE NUMBER(S): SC 2135 of 2001

COUNSEL: Mr P Brereton SC with him Mr R J Brender (Plaintiffs)
Mrs S Foda (First Defendants)
Mr R J Powell (Second Defendant)
Submitting appearance (Third Defendant)

SOLICITORS: Trisley Kilmurray (Plaintiffs)
C N Ingham & Associates (First Defendants)
McDonald Johnson (Second Defendant)
K C Hall (Third Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WINDEYER J

WEDNESDAY 5 MARCH 2003

2135/01 ROBERT JOHN FERNANCE AND ORS V DAMIEN JAMES SIMPSON & ORS

JUDGMENT

Issue

1 Mr and Mrs Fernance, the first plaintiffs, are the owners of property 49 Church Street, Newcastle. Mr and Mrs Randall, the second plaintiffs, are the owners of property 45 Church Street, Newcastle. Mrs Hansen the third plaintiff, is the owner of property 47 Church Street, Newcastle. Each of the owners claims to be entitled to a right of way as appurtenant to their land over land owned by the first defendant, which that defendant has contracted to sell to the second defendant. The question is whether or not they are so entitled. I will refer to the land the subject of the claim as “the lane”.

Title facts

2 The story concerns parts of Lots 8, 9, 10, 20, 21 and 22 of land at Newcastle originally owned by the Australian Agricultural Company. The plan of sub-division is now known as DP 978941. A diagram, not to scale, showing the relevant land is set out below

3 The land which comprised lots 8, 20 and the eastern parts of lots 9 and 21 was acquired by Henry Baker by conveyance dated 3 March 1859, registered number 674 book 59. Part of that land is the property now owned by Mr and Mrs Randall, known as 45 Church Street, Newcastle. The original lots in question ran between Church Street and what is now Tyrrell Street, but was then known as Sydney Street.

4 The land comprising lots 10 and 22 and the remaining part of lots 9 and 21 was acquired by Charles Bolton by conveyance dated 5 August 1859, registered number 62 book 574. Charles Bolton in turn by conveyance no 462 book 118, sold part of that land, being the part now owned by Mrs Hansen, to Atkinson Alfred Patrick Tighe:

… together with a right of way for the said Atkinson Alfred Patrick Tighe his heirs, appointees, executors, administrators and assigns alone or with others with or without animals or vehicles at all times on over and along the said reserved passage ten feet wide and also along another reserved passage ten feet wide being from the eastern end of the said first mentioned passage to Sydney Street.

5 Bolton did not own land to the east of the land sold to Tighe, but he remained owner of land to the south of the Hansen land, including the east west passage to which I have referred. The land to the south of that passage is now lot 2 in DP 620192. Thus it was possible for Bolton, as vendor, to grant the right of way to Sydney Street (now Tyrrell Street), over a ten-foot strip along the eastern edge of lot 2. He could not have granted a right of way east of lot 2, as he did not own that land.

6 By conveyance dated 16 May 1872, Registered No 287 Book 130 Bolton conveyed to Henry Smith, and Henry Smith conveyed to William Greaves and William Hills as trustees for Martha Smith, those parts of Lots 10 and 22 were bounded on the east by the Hansen land, together with a right of way “over the road at the back part of the said premises and formed over part of allotment 9 to Sydney Street, having a width of ten feet”. This is the Fernance land. A plan annexed to that conveyance gives a misleading impression of the western boundary of what is now lot 2, but it is accepted, I think correctly, that this documentary right of way is over the same land as the right of way appurtenant to the Hansen land, except that it may exclude that part of the east west passage as is part of Lot 10. For the purposes of this case that is irrelevant as the east west passage is not subject to the claim made here. I should add, however, that if Mr and Mrs Fernance do not have documentary title to a right of way over the whole of the east west passage, it is quite clear from the evidence in this case that they are likely to have such a right by prescription.

7 The physical properties of a strip of land along the eastern boundary of lot 2 indicate that the right of way established by grant may have been exercised for some period of time. However, plans in evidence made it clear that the north south ten foot strip on the eastern side of lot 2 has not been used as a right of way from the Fernance and Hansen lands for many years, buildings having been constructed on that part of lot 2 at one stage, although not being in existence now. Land descriptions in at least one conveyance of lot 2 indicate that it is bounded on the east by a right of way. Lot 2 is now under the Real Property Act 1900 and the title does not show it as subject to any easement.

8 So far as is relevant here, the land originally held by Henry Baker was dealt with as follows: The block shown on the diagram as Strata Plan 2989 was sold by the executor and the trustees of the estate of Henry Baker to John Watsford Kingsborough by conveyance dated 18 July 1913, Registered No. 634 Book 1005. That conveyance described the western boundary as bounded by a right of way.

9 The land now comprising No. 45 was sold by such executor and trustees by conveyance Registered No. 42 Book 1211 to Elsie Ray Barrett in 1920, apart from a relatively small part in the south west, and was subsequently conveyed in 1926 to a Mr Wheeler a well-known Newcastle solicitor by conveyance Registered No. 150 Book 1446. Mr Wheeler converted the land to Torrens Title by a primary application which included a claim for possessory title of the small piece of land on the southwest to which I have referred. The application was successful and land became and remains lot 200 in Deposited Plan 558688, now being the land in Certificate of Title Volume 12290 Folio 4. In his primary application Mr Wheeler claimed a right of way by prescription over the lane, but the Registrar-General refused to consider this on the ground that s14A of the Real Property Act as it was at that time prevented an easement being brought under the Act unless created by instrument.

10 The land being the lane the subject of this claim is now known as lot 9 in DP 1004071 being the land in Folio Identifier 9/1004071. This land remained in the estate of Henry Baker until it was sold by the Council of the City of Newcastle to Mr and Mrs Simpson by contract dated 24 April 1999, the Council selling pursuant to its powers under s713 of the Local Government Act 1993, the rates being unpaid.

11 The contract for sale included a clause as follows:

38. CLAIMS IN RESPECT OF RIGHT OF WAY

12 By this time the Fernance property had been brought under the Real Property Act, the title now being the land in Folio Identifier 1/819070. The title indicates that the land has the benefit of a right of way 3.05 metres wide, appurtenant to it as shown on the title diagram, being DP 819070 which in fact shows this right of way as being over the east-west strip which remains in the Bolton estate and then for the same width to Tyrrell Street, along the western side of the lane. It is, I think, apparent and it is accepted by all sides, that this description as to the location of the right of way so far as it runs north-south is incorrect, although that is the location of the easement accepted by many surveyors over the years.

13 It seems, although the evidence is lacking, that the Registrar-General took action to convert the lane land to Torrens Title after purchase by the Simpsons on lodgement of the conveyance from Newcastle City Council to them. The result of this was the issue on 14 July 1999 of the qualified and limited title Folio Identifier 9/1004071, which bears no notification of any easements. Mr and Mrs Simpson entered into a contract to sell the land to McKenzie Holdings Pty Ltd on 31 March 2000. This contract was conditional upon a certain development consent being obtained which after some difficulty and amendment was granted. This development provides for a building on the eastern side of the subject land, extending more or less to the southern boundary of the Randall land, but not protruding into that part of the lane as comprises the western side for a width of 3.05 metres east from the western boundary. The reason for this was that the Simpsons and those controlling McKenzie Holdings Pty Limited accepted that there was a documentary right of way over that part of the land.

14 Mr and Mrs Fernance, who had opposed the sale of the land by the Council and the proposed development, then lodged a caveat against the title to the lane claiming an interest in that land, being an entitlement to a right of way pursuant to conveyance Registered No. 287 book 130 or for a right of way by prescription.

15 Lapsing proceedings were taken for removal of the caveat as a result of which Mr and Mrs Fernance commenced these proceedings for an order that the caveat remain in force, claiming a right of way. The other plaintiffs were joined later in the proceedings, which give rise to this claim.

Basis of claim for easement

16 The claim of each of the plaintiffs is for an easement by prescription upon the doctrine of the lost modern grant, each owner claiming over twenty years uninterrupted enjoyment of the easement. The first defendants argued that the claim should fail as the commencement date of the claim was not pleaded. This was not raised in the defence; it might have been a ground to strike out the pleading, but in modern days would not defeat the claim. Paragraph 23 of the amended statement of claim makes it clear that at a minimum, 20 years’ usage is claimed.

17 So far as No. 49 is concerned, Mr and Mrs Fernance purchased that property in 1985. The back gate to their premises opens onto the east-west passage. They have used the lane regularly for the purpose of vehicular and other access to the rear of their property. They have done work to maintain the passage and lane. When they applied to bring their land under the Real Property Act, by primary application they applied for a right of way over the whole of the lane, but consented to this claim being deleted and the supposed documentary right only being included. The predecessor in title to this property, namely Salsola Pty Limited used the east-west passage and lane as their main vehicular access and used it on a daily basis. Mr Owens and his wife being the directors of Salsola owned three cars, which they regularly drove over the lane. It was also used for deliveries to their home by furniture vans and the like. Salsola Pty Limited owned the property from 1982 until 1985. The predecessors in title to Salsola were Mr and Mrs Cowan, who owned the property from 1975 to 1982. The only vehicular access at the time when they owned the property was from the south along the lane from Tyrrell Street to the east-west passage and then to the rear of no. 49. Again they used this on a regular basis. Mr Cowan said that he saw Mr and Mrs Hansen using the lane access on many occasions during the time when he was there. I think it clear that anybody walking along the lane and looking along the east-west passage must have known that it was a means of access to no. 49. I should add that surveys obtained by Salsola Pty Limited, when it purchased from Cowan and by Mr and Mrs Fernance when they purchased from Salsola both indicated the existence of the access from Tyrrell Street, along the lane stating that it appeared to have been used for many years over a width greater than the ten feet. Both surveys make it clear that the whole of the lane was used up to a line parallel with the northern edge of the east-west strip.

18 So far as no. 47 is concerned, Mrs Hansen purchased that property in October 1976 by conveyance Registered no 304 Book 3259 and has lived there with her husband ever since. There is a gateway for pedestrians only at the southern end of the eastern side of the Hansen property, giving access to the lane in an area north of the east-west passage. Mrs Hansen stated on affidavit and in oral evidence that she has used the passage as has her husband regularly, and that it is and has been used by their tradesmen and gardeners for deliveries and to take away rubbish and the like. That evidence could not really be challenged and I accept it.

19 The evidence so far as no 45 is concerned is even clearer. There is evidence that Mr Wheeler made constant use of the whole of the lane gaining access to the rear of his property by some double gates there. Judging by the appearance of the bank which leads from the gravel area up to those gates at the present time, vehicular use is irregular at the present time.

20 When Mr Wheeler lodged his primary application in 1972 the evidence in support of it included evidence in support of his claim for an easement by prescription over the whole of the lane. As I have explained that claim was not accepted, but it is clear from the statutory declarations which were lodged in support that had it been permissible to do so, there was sufficient evidence of use to justify the easement now claimed. Mr Wheeler sold no. 45 to Shoal Bay Country Club Pty Limited in 1984, that company being controlled by Mr Randall. Mr and Mrs Randall purchased the land from that company in March 1988. They then built a new home on the property and have lived there since. While their new home was being constructed the evidence is that the lane was used daily by their construction workers, that it was later used for deliveries and is now used by their gardeners and tradespersons on a reasonably regular basis. There is no particular evidence of use during the time the property was owned by the Shoal Bay Country Club, but I do not consider that would be sufficient to amount to an interruption in use as the question of access from Tyrrell Street was a subject of correspondence at the time of the purchase by the company, a survey having been obtained at that time stating that the lane had been used as access from Tyrrell Street to the subject land for a period in excess of forty years.

21 It was, of course, difficult for the defendants to bring any evidence contrary to the plaintiffs’ evidence of use and they did not do so. I am satisfied that the requirement of upwards of twenty years uninterrupted enjoyment of the easement being a right of way over the whole of the width of the lane, has been established by the parties, although that use by the Fernances is limited to that part of the lane which is south of the prolongation of the northern edge of the east-west passage. Twenty years use had been enjoyed prior to ownership passing to the present registered proprietors.

22 The principle of establishing a prescriptive right to an easement based on lost modern grant is part of the common law applicable in New South Wales as being in force in England in 1828: Delohery v Permanent Trustee Company of New South Wales (1904) 1 CLR 283. The enjoyment of the easement must be as of right and not be forceful, secret or by permission. Enjoyment was not by force, stealth or permission. These requirements are established. The only real issues in this case arise from the requirement of knowledge of the user by the owner of the servient tenement insofar as this relates to acquiescence and any question of disability during the period relied upon to establish the easement or possibly at the time the lost grant was made.

The servient owner

23 It is desirable, so far as is possible from the evidence, to trace the ownership of the land claimed to be the servient tenement. It is likely and almost certain that there have been no dealings with the lane since it was acquired by Henry Baker until sold by Newcastle City Council for unpaid rates. This is an inference I have drawn although there is no real evidence apart from Council records. Since acquisition by Henry Baker the following events have occurred relevant to legal ownership of the land in question:

(a) Henry Baker died on 27 March 1885. Probate of his will dated 21 May 1879 was granted to Charles Cope, one of the executors named therein on 11 June 1885 with leave reserved to William Cope, the other executor, to come in and prove. The recitals in conveyances of other parts of the land held by Henry Baker establish that William Cope did not come in and prove, although he was a party to those conveyances, in his capacity as a trustee.

(b) By his will, Henry Baker gave all his estate “unto and to the use of William Cope … and Charles Cope … whom I hereby appoint trustees and executors of this my will upon trust to manage let sell convert and invest the same as they may think fit and pay the rents and other proceeds” … to his wife, Elizabeth Baker during her life and after her death to his daughter Sarah Elizabeth Cooper for her life and after her death upon trust for such of her children as she should by any writing or will appoint.

(c) Charles Cope died on 30 May 1925. Probate of his will was granted to his brother, the said William Cope and his son Charles Joseph Cope on 23 October 1925.

(d) William Cope died on 24 September 1933. Probate of his will was granted to Perpetual Trustee Company Limited and Donald MacIntyre on 19 July 1934.

(e) Charles Joseph Cope died on 12 September 1937. Letters of Administration with the will annexed of his estate were granted to his widow, Marie Odette Cope on 12 December 1937.

24 The result of this received little attention during the hearing, although some of the facts were pleaded in support of defence based on incapacity and lack of knowledge. I commented during the hearing that it seemed that as there was no grant of probate but rather a grant of administration with the will annexed of the estate of Charles Joseph Cope, the legal estate in the lane might have vested in the Public Trustee pursuant to s61 of the Wills Probate and Administration Act 1898, unless and until an administrator de bonis non administravit of the estate of Henry Baker was appointed. On further consideration I think this is incorrect and that the facts pleaded or particularized by the defendants, although not necessarily proved, are correct insofar as they assume legal ownership in the trustees. As Henry Baker died before the Probate Act 1890 the real estate vested in his devisees. The Statute of Uses would have executed the use so that Charles Cope and William Cope would have held the legal estate in the real estate of Henry Baker upon the trusts as set out in his will. The legal estate would have vested in the surviving trustee, namely William Cope. On his death it vested in his executor, subject to the trusts upon which he held it, in accordance with s45 of the Wills Probate and Administration Act and in fact William Cope provided in his will that his trustees held his estate “(i) as to estates vested in me as trustee or mortgagee subject to the equities affecting the same.”

25 There is in evidence a somewhat inconclusive letter from Perpetual Trustee Company Limited which states the company has no record of dealing in its capacity as executor of the will of William Cope with the land of Henry Baker in Tyrrell Street, Newcastle. This is 2003 and that does not establish much but the likelihood the lane remains in legal ownership of the trustee company. No one made any attempt to find out how the estate of Henry Baker was dealt with upon the exercise of the power of appointment of Sarah Cooper, as appointor; in fact it was obvious at the hearing that no one had considered the terms of her will. The court can only go on such evidence as is put before it in an action.

26 Mrs Baker and Mrs Cooper were successive equitable life tenants in the estate of Henry Baker, but there is nothing to suggest that they were ever in possession of the lane and they were not legal tenants for life of it. In any event they were dead before the claimed user commenced.

27 The facts set out in the preceding paragraphs are relevant to the requirements for establishing user as of right with acquiescence of the owner of the servient tenement. The evidence establishes enjoyment by the plaintiffs, and so far as is necessary their predecessors, as of right on their part. The fact that Mr Fernance considered he had a documentary grant of a right of way over the western ten feet of the lane and that Mrs Hansen may have had the same mistaken belief, does not defeat the prescriptive rights so far as they are concerned and has no bearing on the claim of Mr and Mrs Randall: Bridle v Ruby [1989] 1 QB 169 and the cases there discussed; Gale on Easements 16th Edition para 4-79 et seq. The evidence clearly establishes user as of right generally over the whole width of the lane. There is no evidence of mistake in understanding of any owner of the servient tenement, at least until the defendants acquired their interests. Thus the questions which might arise on mutual mistake, discussed in volumes 50 and 53 of The Conveyancer and Property Lawyer at pages 356 and 261 respectively do not arise here.

28 Knowledge, of course, is relevant to acquiescence. Fry J in Dalton v Angus (1881) 6 App Cas 740 at 774 said that there could be no acquiescence without knowledge in the servient owner of the action done. However, in Union Lighterage Co v London Graving Dock Co [1902] 2 Ch 557 Vaughan Williams LJ, who was in dissent, but not on this point, held that actual knowledge was not required, it being sufficient that the servient owner ought to have known of the use and he considered that Lord Blackburn in Dalton v Angus was of the same view. Romer LJ said at page 570-571 the following:

Now, on principle, it appears to me that a prescriptive right to an easement over a man’s land should only be acquired when the enjoyment has been open – that it to say, of such a character that an ordinary owner of the land, diligent in the protection of his interests, would have, or must be taken to have, a reasonable opportunity of becoming aware of that enjoyment. And I think on the balance of authority that this principle has been recognised as the law, and ought to be followed by us.

Dalton v Angus

29 In the present case there can be no doubt whatsoever as to the means of knowledge as the fact that the lane was being used as an access way by the owners of the three properties in question would and must have been obvious to any reasonable observer.

30 In the present case the plaintiffs do not seek to make out a case of user since 1913, as they do not have evidence of continuous use since then, but as the conveyance from the estate of Henry Baker of the strata title land referred to it as being bounded on the west by a right of way, there is evidence the owners at that stage knew a right of way was being exercised by some persons to whom it could be useful, which could, as I have said, only be the predecessors in title of the plaintiffs. One of the vendors was alive 20 years later. No one other than Henry Baker or his trustees could have granted the right, so in the fiction of the lost modern grant, there is some evidence of grant prior to 1913.

31 The understanding of knowledge and the expansion to imputed knowledge expressed in Union Lighterage Co v London Graving Dock Co was accepted and followed in Diment v N.H. Foot Ltd [1974] 1 WLR 1427. As was explained there it had been expanded further by the Court of Appeal in England in Pugh v Savage [1970] 2 QB 373 at 384. In that case, at p384 Cross LJ said:

When long user – here user for 36 years – of a way has been shown, I think, that the law should support it if it can, and that we ought to presume, in the absence of any evidence to the contrary, that the owners of 457 in the period 1932/1940 knew of the user and that Ralphs knew of it.

32 In Gangemi v Watson (1994) 7 WAR 505, a decision the Full Court of the Supreme Court of Western Australia, it was accepted that constructive knowledge or means of knowledge is sufficient to satisfy the requirement. At page 508 it is stated that it was common ground between counsel that it was for the claimant of the easement to establish open use of the laneway in question. However, in his judgment, with which both Ipp J and Wallwork J agreed, Seaman J set out the passage from Pugh v Savage which I have quoted with apparent approval and finally stated at p516:

Furthermore in the face of the evidence adduced at trial on behalf of the appellants it is my view the respondent carried the burden of proving that Mr Sedgley did not have knowledge of the adverse use.

The Law of Easement and Profits

33 On the facts of the instant case, it is my opinion that any owner of the subject property taking reasonable case for his or her interest, would have been aware of the use of the land. If such an owner abandons the land then it seems to me that it would be entirely illogical to hold that abandonment results in some benefit. But in any event the defendants bore the onus and did not discharge it. Producing grants of representation up to 1937 is no evidence of subsequent grants or lack of grants or ownership. Neither is the letter to which I have referred.

34 Some reliance was placed by the defendants on the case of Hamilton v Joyce [1984] 3 NSWLR 279. Insofar as that case was relied upon as holding that is not possible to establish a prescriptive easement in a case where the legal owner did not have knowledge of ownership the case does not hold that. More important is the reliance placed upon the holding that, as the owner of what would have been the servient tenement in that case, if the right had been established, was not in occupation during a considerable part of the prescription period, this was fatal to the claim. This question of occupancy appears on page 291 of the judgment where Powell J said:

The first, and, as to that part of the “paddock” of which Mrs Jeffries is the owner, and insuperable obstacle to the plaintiffs’ claim is that from at least 1913, if not from an earlier time, until comparatively recent times, the fee simple owner has not occupied either of the properties of which “the paddock” forms part.

35 This passage must, however, be considered together with an earlier part of the judgement, where His Honour found that the land to which he was referring was tenanted from an earlier period up to 1970 by four tenants in succession. This was relevant to his acceptance of the requirements for a lost modern grant set out in Megarry & Wade, The Law of Real Property, 3rd Ed. 1966 at 837, - (which are carried through to the 6th edition p1118) - including the requirement that the user be in fee simple by and against the fee, it being stated, therefore, that a claim by prescription must fail if use can only be proved during a time when the servient land was occupied by a tenant for life or for years. When these matters are considered together it is clear that what is being referred to is the right to possession and possession by a tenant and has nothing to do with lack of occupancy by the owner in fee simple of the legal estate. As I have said Mrs Baker and Mrs Cooper were equitable life tenants. They had no right of possession and it is perfectly clear that they would never have entered into possession of the subject lane. Disability which precludes the prescriptive period from running includes mental incapacity and infancy in the person entitled to the legal estate in possession and possession in one not entitled to the possession as owner in fee simple.

36 I should deal with one further matter which appears to be raised on the defence of the second defendant and by the amended defence of the first defendant. I have dealt with this in part in dealing with the chain of title and the legal personal representatives of the estate of Henry Baker. The pleadings, or the particulars relevant to this claim in substance allege that on the death of William Cope and Charles Cope, the office of trustee of the estate of Henry Baker became vacant and that no person was appointed to execute the trusts under the will after the death of William Cope and Charles Cope. While that it alleged, the fact is that there is no evidence to support that claim. The evidence ends where I have left it in paragraph 23. The basic principle of land law is that there must be a person in whom the legal estate is vested. The defendants have not proved and could not prove that there was no such person. William Cope was admitted as a solicitor in 1874. He was probably born around 1850. It is at least likely that his executor, Donald MacIntyre had died by 1950 and almost certainly by 1970, leaving the legal estate in Perpetual Trustee Company Limited. That company would have had power to appoint new trustees of the estate of Henry Baker. There is no evidence one way or the other as to this. Unless and until it did so, the legal estate was in it pursuant to s45 of the Wills Probate and Administration Act.

37 There is of course complete artificiality in the doctrine of the lost modern grant. No doubt its existence arises from the reasonableness of allowing establishment of a right by long use coupled with the requirement that as an easement is an incorporeal hereditament it lies only in grant or reservation: see Cheshire & Burns Modern Law of Property 15th edition p543, the more modern approach being to do all that can be done to assist long term users at least so far as onus is concerned. It seems to me to be equally artificial to look at questions of ownership of the fee during the period of user. Lost modern grant presumes a grant before user commences. As a matter of logic one would then expect that ownership must be in one able to make a grant prior to the use period, with the use itself if open, not by force and not by permission being sufficient evidence of grant. The following passage at p552 in the case of Tehidy Minerals Limited v Norman [1971] QB 552 goes some way to support that view:

Angus v Dalton

38 In fact, however, that passage is really only relevant to the present case insofar as the defendants have pleaded a defence of incapacity which must go to the inability to make the presumed grant. There is no proof of such incapacity in this case. The passage does not bear on anything else because one of the requirements of prescription is user as of right against the fee it being accepted as a requirement that the legal estate must not be in possession of person with a limited interest, such as a lessee or life tenant, at the commencement of the use period presumably on the basis this in some way coincides with the grant although if use is later continued during possession of the servient land by a tenant or tenant for life, this does not preclude the upholding of the easement: Palk v Shinner (1852) 18 QB 568; Pugh v Savage at pp 382 to 384. The defendants have not established possession in anyone which would defeat the claim of the plaintiffs.

39 This is an unusual case which may be thought to take the limits of the doctrine of lost modern grant to its furthest boundaries. I note, however, that in Hamilton v Joyce Powell J said that having spent many hours grappling with varying statements of principle on the topic, he had come to the conclusion that the law as set out in Megarry & Wade was correct. With respect I agree with that. The relevant law is now set out in pages 1118 et seq in the 6th Edition of that work. One reason for saying this is that it is I think a mistake to separate the question of knowledge in the servient owner from the requirement of user as of right. As is stated in Megarry & Wade at p1119 as to user as of right:

The essence of this rule is that the claimant must prove not only his own user but also circumstances which show that the servient owner acquiesced in it as in an established right.

40 In light of this decision it is not necessary to deal with the alternative claim of the plaintiffs for an equitable easement. An argument of the defendant that if the easements were acknowledged the lane land would become sterile and useless to the owner, was not made out and was not really pursued.

41 I should add that one of the bases for the artificial doctrine of lost modern grant is the quieting of titles: Megarry p1119. It was the action of the Newcastle City Council which disrupted a position which had existed since 1913, although no doubt the Council had a duty to collect unpaid rates. The council was aware of the claim. It is not a party to the action so that the steps it took to comply with s715(c) of the Local Government Act 1993 are not known. It could have obtained some assistance by obtaining a certificate under s700(i)(b) of that Act and it might have called in aid the provisions of s710 of that Act. It would be difficult to see how the letter at page 116 of Exhibit C addressed to “Est of the Late Henry Baker” commencing “Dear Mr Baker” was proper notice, but other means of notice may have been relied on. Assuming he made a will at 21 years of age Mr Baker would at the date of that letter have been 140 years of age.

42 The first defendants were aware of the claims when they bought at auction without inspection and knew a little more before they settled. Contrary to some evidence I find the directors of the second defendant were aware of the claims and knew of the use. They took a known risk. It should not be thought that this decision creates any injustice.

Cross claim

43 It is necessary to deal finally with the cross-claim of the second defendants in which they seek a declaration that a terrace house constructed on the land in accordance with the plans approved by the Newcastle City Council would not constitute an obstruction of the right of way of the plaintiffs. This claim might have been maintainable had the right of way been a documentary one over a strip 3.05 metres wide on the western side of the lane but not otherwise.

44 The evidence is perfectly clear that any such construction would substantially interfere with the rights of way to which the plaintiffs are entitled. A right of passage down a ten-foot strip is entirely different from a right of passage across a twenty-foot strip. This is not a case of a garden edging the right or anything to that effect. The evidence is clear that vehicles of some types would not be able to access the Fernance property without considerable difficulty. The building as planned would obviously have a considerable effect on the Randall right. There is no basis upon which the court could grant the declaration sought.

45 There is a further claim against the Registrar-General for rectification of the register. This claim, as I understand it, could only be made so far as the title which has issued to the land of Mr and Mrs Fernance is concerned. When the matter was originally commenced and the Registrar-General was made a party, it was assumed, I think by all parties, that the documentary right of way existed over part of the land in question. The Registrar-General filed a submitting appearance on that basis. All parties other than the Registrar-General have accepted that the documentary right of way was not granted over any part of the land the subject of these proceedings. The documentary easement is not noted on the qualified Certificate of Title to the subject land which has been issued to Mr and Mrs Simpson. Insofar as the title to the property of Mr and Mrs Fernance shows a documentary right of way appurtenant to their property, over the western side of the lane, it is, as I understand it, accepted that this is an error. Without having the Registrar-General taking an active part in the proceedings it has been accepted that it is not proper to make any order for rectification of the register so far as the title to the Fernance property is concerned. I propose to stand over that part of the cross-claim but would assume that it can be sorted out by arrangement between the registered proprietors and the Registrar-General. Lot 2 land cannot have the easement imposed on it without notice if at all.

Declarations and Orders

46 The declarations and orders I propose to make are as follows:

1. Declare that the first plaintiffs are entitled to a right of way as appurtenant to the land in Folio Identifier 1/819070 over such part of the land in Folio Identifier 9/1004071 as is south of an eastward extension of the southern boundary of the land in Conveyance No 304 Book 3259 in terms set out in the Schedule hereto.

2. Declare that the second plaintiffs are entitled to a right of way as appurtenant to the land in Certificate of Title Vol. 12290 Folio 4 being Lot 200 in Deposited Plan 558688 over the whole of the land in Folio Identifier 9/1004071 in terms set out in the Schedule hereto.

3. Declare that the third plaintiff is entitled to a right of way as appurtenant to the land in Conveyance No. 304 Book 3259 over the whole of the land in Folio Identifier 9/1004071 in terms set out in the Schedule hereto.

4. Order that the first defendants produce Certificate of Title, Folio Identifier 9/1004071 to the Registrar-General to enable registration of the said easements.

5. Order the Registrar-General to register the said easements.

6. Reserve liberty to apply as to implementation of these orders.

7. Order that claim 1 of the cross-claimant’s claims in the cross-claim be dismissed.

8. Order the cross-claimant pay the costs of the cross-defendant limited to such claim.

9. Stand over the balance of the cross-claim seeking rectification of the Register to a date to be fixed to enable the Registrar-General to consider this claim in light of this judgment.

10. Order the first and second defendants pay the plaintiffs’ costs of the proceedings on the statement of claim.

The Schedule

Full and free right for the owner of the dominant tenement and for person authorized by such owner to pass and repass at all times and for all purposes with or without vehicles to and from the dominant tenement.

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Last Modified: 03/21/2003

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Citations

Fernance v Simpson [2003] NSWSC 121

Most Recent Citation

Laming v Jennings [2017] VCC 1223

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35

Arcidiacono v The Owners - Strata Plan No 17719; Arcidiacono v The Owners - Strata Plan No 61233 [2020] NSWCA 269

Cases Cited

2

Statutory Material Cited

4

Quan Yick v Hinds [1905] HCA 10

Delohery v Permanent Trustee Co of NSW [1904] HCA 10

CITATION:	Fernance v Simpson [2003] NSWSC 121
HEARING DATE(S):	17 and 18 December 2002, 12, 13 February 2003
JUDGMENT DATE:	5 March 2003
JURISDICTION:	Equity Division
JUDGMENT OF:	Windeyer J at 1
DECISION:	Declarations as to entitlement to rights of way
CATCHWORDS:	REAL PROPERTY - easements - easement by prescription - lost modern grant - 20 years uninterrupted use - ownership in estate of person who died in 1885 - capacity to grant an easement - acquiescence - requirement of knowledge - whether constructive knowledge sufficient - onus of proof
LEGISLATION CITED:	Local Government Act 1993, s,700, s710, s713, s715 Probate Act 1890 Real Property Act 1900, s14A Wills Probate and Administration Act 1898, s45, s61
CASES CITED:	Bridle v Ruby [1989] 1 QB 169 Dalton v Angus (1881) 6 App Cas 740 Delohery v Permanent Trustee Company of New South Wales (1904) 1 CLR 283 Diment v N.H. Foot Ltd [1974] 1 WLR 1427 Gangemi v Watson (1994) 7 WAR 505 Hamilton v Joyce [1984] 3 NSWLR 279 Palk v Shinner (1852) 18 QB 568 Pugh v Savage [1970] 2 QB 373 Tehidy Minerals Limited v Norman [1971] QB 552 Union Lighterage Co v London Graving Dock Co [1902] 2 Ch 557 Cheshire & Burns Modern Law of Property 15th Ed p543 Conveyancer and Property Lawyer Vol 50 p356; Vol 53 p261 Gale on Easements 16th Ed para 4-79 et seq Jackson on The Law of Easements and Profits p113 Megarry & Wade, The Law of Real Property, 3rd Ed 1966 at 837; 6th Ed p1118
PARTIES :	Robert John Fernance and Christine Fernance (First Plaintiffs) Hugh Gordon Randall and Anne Randall (Second Plaintiffs) Kristine Robin Hansen (Third Plaintiff) Damien James Simpson and Robyn Anne Simpson (First Defendants) McKenzie Holdings Pty Ltd (Second Defendant) Registrar-General of New South Wales (Third Defendant)
FILE NUMBER(S):	SC 2135 of 2001
COUNSEL:	Mr P Brereton SC with him Mr R J Brender (Plaintiffs) Mrs S Foda (First Defendants) Mr R J Powell (Second Defendant) Submitting appearance (Third Defendant)
SOLICITORS:	Trisley Kilmurray (Plaintiffs) C N Ingham & Associates (First Defendants) McDonald Johnson (Second Defendant) K C Hall (Third Defendant)