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Fernance v Simpson

Fernance v Simpson

Case [2003] NSWSC 121 5 March 2003

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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…

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.

Continue reading Fernance v Simpson

Details

AGLC: Fernance v Simpson [2003] NSWSC 121
Case: [2003] NSWSC 121
Decision Date: 5 March 2003

CaseChat Overview and Summary

The case of Fernance v Simpson was heard by the Supreme Court of Victoria and concerns the existence of an easement by prescription over a property. The dispute arose when the plaintiff, Fernance, sought to enforce an alleged easement over land owned by the defendant, Simpson. The easement was claimed to have been established through 20 years of uninterrupted use, with the ownership of the dominant tenement tracing back to an estate of a person who died in 1885. The legal issues in the case focused on whether the easement could be established by prescription, the capacity of the original owner to grant an easement, the requirement of knowledge of the use for the easement to be effective, and the sufficiency of constructive knowledge.

The court examined whether the easement could be established despite the lack of a formal grant. It noted that an easement by prescription requires a continuous and apparent use for a statutory period, and the use must be over land that is part of a separate estate. The court held that the 20 years of uninterrupted use by the plaintiff over the defendant's land satisfied these requirements. Furthermore, the court considered the capacity of the original owner to grant an easement. It concluded that the owner, who died in 1885, had the capacity to grant an easement, and the subsequent use by the plaintiff's predecessors in title fulfilled the necessary conditions for prescription. Regarding the requirement of knowledge, the court found that while actual knowledge of the use by the owner of the servient tenement is typically required, constructive knowledge could suffice if the use was apparent and obvious. The plaintiff demonstrated that the use was such that the defendant's predecessors in title should have known about it, satisfying this requirement.

The Supreme Court of Victoria determined that the plaintiff had successfully established an easement by prescription over the defendant's land. The court held that the uninterrupted use for 20 years, coupled with the apparent nature of the use, met the criteria for a prescriptive easement. Additionally, the court ruled that constructive knowledge of the use was sufficient to satisfy the requirement of knowledge. The defendant's argument that the original owner lacked the capacity to grant an easement was rejected, as the court found that the owner had the requisite capacity. The final orders of the court recognised the easement by prescription and directed the defendant to cease any interference with the plaintiff's use of the easement.

Orders