Gallagher v Rainbow

[1993] HCATrans 49

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B56 of 1992

B e t w e e n -

LORRAINE CHERYL GALLAGHER

Applicant

and

ALLAN ROY RAINBOW and MAREE

ELIZABETH RAINBOW

First Respondents

and

OWEN PETER COALDRAKE and

LEE ANN COALDRAKE

Second Respondents

Application for special leave

to appeal

BRENNAN ACJ

Gallagher 1 5/3/93

GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 5 MARCH 1993, AT 12.03 PM

Copyright in the High Court of Australia

MR D.B. FRASER, QC: If it please the Court, I appear for

the applicant. (instructed by Bayliss Rodgers)

MR J.J.G. HAYDON: If it please the Court, I appear for the

respondents.	(instructed by Sly & Weigall Cannan &
Peterson)

MR FRASER:  Your Honours, in the outline of argument I have

identified the circumstances which have led to this

application and the matters are really, with

respect, quite clearly set out there and I think it

is unnecessary to burden Your Honours with

recitation of those matters. The real point to this application for special leave concerns the question of approach to construction of Torrens

Title easements. The short point is whether, in

construing an easement of that kind, the approach

should be with a predilection to the provision of

the same rights that are provided to the dominant

tenement, to the dominant tenement in subdivision.

In this case there is a grant of easement in

form 10 under the Real Property Act 1861, as

amended, and it is made between the owners of two

separate registered parcels of land. The position

is that there were four such titles which formed a

separate subdivision of land and each of the four blocks came together at the road access in narrow

slivers of land, to have a width of 1.5 metres and

creating a formed road of about five metres in
width over the area of six metres as it abutted the

road.

In the court below, or at least before the

judge at first instance, the approach of

construction was to have regard to the terms of the

instrument and the circumstances that were then

prevailing. His Honour Mr Justice Lee then

achieved a construction which had the result that

the rights were no longer available to the lots in

subdivision.

GAUDRON J:  Do I take it, Mr Fraser, that the real question

in this case is whether the onus of the newly

subdivided lots have got the benefit of the right

of way?

MR FRASER: Yes, Your Honour.

GAUDRON J: Do I also take it, however, that something has

happened t:J the title which now suggests that they

have?

MR FRASER:  The has now been changed by registration

of the )f subdivision.

Gallagher 2 5/3/93

GAUDRON J: Yes, and there are new purchasers who are bound

by the title.

MR FRASER: There are no new purchasers as yet, Your Honour.

GAUDRON J:	I am sorry, a new purchaser of your land?
MR FRASER:	Not registered yet, Your Honour. There has been

a sale.

GAUDRON J: Yes. I fail to see that the issue is anything

other than academic in the event of sale, because

the new purchaser of your land will be bound by the

title.

MR FRASER: Yes, Your Honour, the position in terms of it

being academic is that, in that circumstance, if,

for example an owner of a servient tenement stood

by and watched something change the rights which
were exercised by the dominant tenement, for

example, permitted the building of a house to which

the right of way was to be exercised, in those
circumstances the court has jurisdiction to decree
that there by an inquiry as to the damages that

have been suffered as a result of the abuse of the

easement, as it were, but not to prevent that

continuation of the exercise of extending the use

of the easement.

GAUDRON J: That has not happened yet, either, I take it,

except in so far as the question of the surveyor's

use of it for a short period.

MR FRASER: Really, that principle addresses the situation

of assessing what would the owners of the dominant

tenement have paid to the owners of the servient

tenement in order to purchase these rights that

they then exercised, and which the -

GAUDRON J: But that is not the case that has been made.

MR FRASER: Well, the circumstances changed between the

Court of Appeal's decision, because no injunction

continuing the restraint on a subdivision was

obtained.

GAUDRON J: But, even if you go back to your first question,

which you say is the question, that would not have entitled you to an injunction against subdivision, it would have entitled you to something with

respect of the right of way, but not with respect
of subdivision. People might have been able to get

access from somewhere else, or something. They might have bought land from other people, other

adjoining owners, and sorted it out that way.

Gallagher 3 5/3/93

MR FRASER: Yes, Your Honour. Theoretically of course, that

is possible. From a practical perspective the

declaratory relief related to seeking a ruling as

to the rights that would be available for the

subdivided lots over that land. The position - - -

GAUDRON J: And you have got a declaration in your favour

still standing in that regard.

MR FRASER: Yes, Your Honour. That is so, but a declaration

without the adjunct of being able to enforce it.

The other difficulty, of course, for my client

is, having succeeded, she had to give, of course,

the usual undertaking as to damages, both on

interlocutory basis and pending the appeal to the

Court of Appeal. She is now exposed to a claim for

substantial damages on that, so in terms of being

academic, it is a very real risk to her.

GAUDRON J: But that is again with respect to an injunction

preventing the subdivision, which has got nothing

to do with the primary question, which was about

what would be the rights of new owners.

MR FRASER:  Your Honour, the position is that the

subdivision having proceeded, the rights are being

exercised and cannot be restrained, so, with

respect, it is a little technical to say that the

two are unconnected. The point of the subdivision

was that once they have proceeded, these lots would

otherwise, for all purposes, be practically

land-locked, unless they took access over the

applicant's land. Now that access is being

exercised and, of course, if anything further needs

to be done there will be an application, no doubt,

under the Property Law Act, to provide access, in a

practical sense, to the owners of the subdivided

lots when they are put into new ownership. In

other words, the injunction was designed to prevent the impractical situation of creating six lots when

none of them had access.

BRENNAN ACJ:  I take it your proposition is that so long as

the judgment stands, there is an issue estoppel

which will have its practical effect in the events

that have now happened in two respects. One is in
terms of any proceedings that your client might be

minded to bring to claim damages in respect of the

diminished sale price of the property; the second
is in relation to the assessment of the
compensation consequent upon the dissolution of the

injunctions.

MR FRASER: Yes, Your Honour. In terms of the loss of sale

price, whether that is a true measure of how one

should be compensated for the loss of rights under

Gallagher 5/3/93

an easement because of conduct or events that occur is perhaps a different question. But, essentially,

Your Honour is correct.

BRENNAN ACJ:  I think you put it earlier in terms of how

much would the owners of the dominant tenement be

prepared to pay rather than to lose the opportunity

to exercise the right of way, is that right?

MR FRASER: Yes, Your Honour.

BRENNAN ACJ:	It does not matter which way it is put, that is the point, it is the declaration which stands in
your way, is that what you are saying?
MR FRASER:	Your Honour, it is more than that because in the

reasons for judgment of the Court of Appeal the

view was expressed that the subdivided lots did

have the ability to exercise right of way over the

easement.

BRENNAN ACJ:  Now, why is it that that question, which is

central to your argument as I understand it, is one

which does not turn entirely upon a construction of

the particular home drawn instruments?

MR FRASER:	Your Honour used the expression home drawn, in fact it is a form of easement which is in common
use in Queensland, according to the evidence.
BRENNAN ACJ:	I thought it was what was in common use in

Queensland was a provision which allowed reciprocal

user of the handles of battleaxe blocks for the

purpose of common access?

MR FRASER:  Your Honour, the evidence of Mr Appleby that he

was the author does not give full effect, of

course, to his appreciation of copyright law in the

State.

BRENNAN ACJ: What, you mean this was taken from some law

society form, was it?

MR FRASER: According to the surveyors it is a standard form

used within Queensland, and I suppose another point

which is linked, obviously, is the Court of

Appeal's construction approach was on the premise

that when you looked to the terms of an easement to

see what rights will be available if there is a
subdivision, you do so with a predilection to

accepting that those rights ought to be available

to the new lots, and the question is whether that

is a correct approach because that is very

important for not just this form of easement, but

really for any form of easement where a subdivision

is to occur.

Gallagher 5 5/3/93

Your Honour, I mention that because the matter

has not been the subject of any Court of Appeal

decision elsewhere. The discussion in relation to

the consequences of subdivision in Torrens System
land has been limited to dealing with the effect of
restrictive covenants and there are two decisions

of Full Courts in Victoria and New South Wales,

each of which identify the issue as being very

important and in each case there was a strong

dissent. In each case the majority held that there

is no preference to a transfer of that kind or

rights of that kind being exercisable in relation

to all of the land or any parts of the land that

may thereafter be severed off. The two cases are

in the list: they are Re Arcade Hotel Pty Ltd,

(1962) VR 274 and Ellison v O'Neill, (1968)

2 NSWR 246.

Now, the New South Wales case contained in the

dissenting judgment a reference by Justice Jacobs
to the analogous situation of easements but, of

course, that does not help us much to understand

that of the minority.

the approach to the law in relation to easements in or

The position that seems to have commended

itself to other jurisdictions in relation to the

construction of easements, is that you have regard

to the terms of the instrument as a whole and, if
there is any ambiguity or uncertainty, one may then

have resort to the extrinsic circumstances then

existing. In this case, that was the approach of

the trial judge. In the Court of Appeal - and it

may perhaps be easiest to identify the point of my

submission by reference to the judgment of

Justice Pincus, which appears at page 70 of the

record - perhaps I should take you back to the

first page of his judgment, page 69. If

Your Honours see, in the second paragraph there, what His Honour has said:

With respect to the construction of the

grants of easement which, according to the

argument for the appellants, are so framed as

to restrict subdivision of the dominant
tenements, it does not appear to me that

anything sufficiently strong can be found in

their terms to justify that conclusion. One

would expect to find so important a

restriction expressly stated, if that were the

parties' intention.

And there is a reference to the - - -

GAUDRON J: But that must be right, must it not, in this

sense: if you could get subdivision elsewhere, if

Gallagher 6 5/3/93

you could get access elsewhere, there is no problem

about subdivision. The question is whether the

expression, "the dominant tenement", in the grant

or in any such grant, extends to every lot into

which the dominant tenement is later subdivided?

MR FRASER:	Yes, Your Honour, that is correct.
GAUDRON J: Yes.	So it is not a question of subdivision at

all; it is a question of user of right of way.

MR FRASER: Exactly, Your Honour. It is really, with

respect, misstated because it is not a question

of - - -

GAUDRON J:	It sounds very much as though counsel might have framed the case in those terms rather than in the
way you now put it.

MR FRASER: With respect, Your Honour, that did not happen.

The basis of the approach was to identify whether

or not the lots thereafter in subdivision would be

entitled to exercise the rights. That was made

clear. The outline of argument before the Court of

Appeal is of course not before Your Honours at the moment, but the identification of the approach to construction was clearly set out there.

BRENNAN ACJ: Justice Pincus actually acknowledged what the

true question was, did he not, later in his
judgment where he said it was a question of the

user - - -

GAUDRON J: Page 73.

MR FRASER:  Yes, Your Honour. It seems that he did not

misunderstand the consequential point, I think,

that is being described.

BRENNAN ACJ:  Do you accept the question is as His Honour

stated it at page 73:

whether, if subdivision occurs, the easement

is available to the proprietors of the new

lots.

MR FRASER: Yes, Your Honour.

BRENNAN ACJ: This is in the context of an easement which

provides for a right of way "for all purposes

ordinary incidental to or connected with domestic

use" and the costs to be borne by the registered

proprietors for the time being of the nominated lots as to one quarter each. Is it those words, "the registered proprietors for the time being as

to one quarter each", which found your submission?

Gallagher	7	5/3/93
MR FRASER:	Your Honour, they are of course part of it.	The

more important aspect is to identify what the terms

of the instrument as a whole mean. The

construction approach, with respect, ought to look

to the identification of the rights and then to see

how the right of way is described. The point, I

suppose, that really emerges with most clarity is

when one goes to the judgment of Mr Justice Thomas

in the Court of Appeal at page 86. It is the

paragraph at the top of the page where His Honour

said:

It is possible to find words expressly

consistent with the prospect of subdivision.

Then he instances these two examples:

The easement is granted "for all purposes

ordinary incidental to or connected with

domestic use and enjoyment of the dominant

tenement or any part thereof" -

his emphasis added -

There is therefore a grant of a right of way for prescribed domestic use of dominant

tenements 16 and 17 or any part thereof. This

would encompass the consequences of

subdivision.

With respect, Your Honour, that misconceives what

is involved in the reference to "any part thereof".

That qualifies the domestic use, not the dominant tenement. For example, if although at the time the easement was entered into only one residential

dwelling could be constructed on one lot, assume

that duplexes could be constructed. If it were not

for that provision, then the owner of the servient

tenement could say, "Your rights extend only to the
domestic use of the tenement, that is the dominant

tenement. You can't permit access to somebody who

is residing within one of the duplexes because he

has only rights in relation to half or some portion

of the dominant tenement."

The other aspect of that which makes it

difficult to see how it can assist in the result

which was found by Their Honours below is that the

terms of the right of way, if you say that the

right is exercisable in respect to the domestic use

of the dominant tenement or any part thereof, that

is an expression of the quantum of what is given,

because the moment you have subdivision, those

words are still the qualification of the right.	So
that does not really change anything. In other
words, it would then be "or part thereof" of the subdivided lot and so as to lead to an absurdity,

Gallagher 5/3/93

which was the point identified by Mr Justice Lee,

the trial judge.

BRENNAN ACJ:  I am not following that, I am afraid,

Mr Fraser. What is it that is absurd about that?

MR FRASER: Well, if one measures the quantum of the right

that is given to the person entitled to exercise
the rights as part of the dominant tenement, it is
a right to have access for domestic purposes

related to the whole of the dominant tenement or

any part of that dominant tenement. Once you have

subdivision, on the analysis of the Court of

Appeal, that right is still the same, that is, the

owner of the subdivided lot has the right of way

over the whole of his then reduced dominant

tenement or any part of that reduced dominant

tenement, and then so on, ad infinitum. So the

point is that it does not qualify the dominant

tenement, it qualifies the domestic use.

BRENNAN ACJ: But you are approaching this, are you, on the

footing that what is conferred by these easements

is conferred, as it were, on an individual and is

not something which goes with the land of the

dominant tenement.

MR FRASER: Well, that is the issue, Your Honour. I am

sorry, I will rephrase that. It clearly is an

easement that runs with the land, but there is an

identification of the persons entitled to exercise

the rights. May I take Your Honour to the second

point on the same page?

BRENNAN ACJ: Well, is the identification otherwise than by

use of the words "the registered proprietors for

the time being of lots 14 to 17"?

MR FRASER:  Yes, Your Honour. The right of way, according

to the enlarged panel	- and I think Your Honours
should have a copy of	a document described as

"Analysis of Grant of Easement" in the papers.

BRENNAN ACJ: Yes, Mr Fraser.

MR FRASER:  Your Honour will find the terms of the enlarged

panel set out in the judgment of Justice Thomas at
page 84 of the record, and the analysis has set out

those persons who have been identified as being

able to exercise the right of way. Now, the point

that was made - and it is appropriate, with

respect, that I do this - at page 86 of

Mr Justice Thomas's judgment, was that the grantee,

by the terms of the easement was:

Gallagher 9 5/3/93

defined to include the transferees and

assigns of the grantee and the registered

proprietor or proprietors -

and so on. And then:

This is appropriate to cover new owners after

subdivision.

But, of course, although that was the definition,

instead of just simply relying upon the definition of "grantee" in terms of identifying who the right of way was exercisable by, the document, and the

author of the document, went on to identify that it was the grantee and then to list those persons, but

not to include, not to repeat, the reference to

"assigns". You see, it is in the area of

assignment, that is partial assignment, that the

rights emerge to the holders of the dominant

tenement.

In other words, if one looks at the limitation

contained within the description of the purpose of

the easement, one sees that although the easement

runs with the land, it is limited to those persons

enumerated, and each of those persons consistently

can be read as identifying that there is to be no

extension of the rights to partial assignees.

BRENNAN ACJ:  Why is that? Why does not one take the words

"occupiers for a time being of dominant tenement",

"registered proprietors for the time being of a

dominant tenement"? Why are those words not

capable of application to those who may be

registered proprietors of, and occupiers of

subdivided areas?

MR FRASER:  Your Honour, because, in this case, the result

that that would lead to would have been obtained by

simply identifying that the right of way was a

right of way for the grantee, which included

assigns. My point is that by deleting, as it were,

from the description of those who would be entitled

to exercise the right, "assigns", the author has

intended to restrict the availability of the rights

to those that are exercisable in conjunction with

the dominant tenement as it originally was set out.

BRENNAN ACJ: Is that the special leave point.

MR FRASER:	No, Your Honour, the special leave point is the question of approach to construction: whether you
do so with a predilection towards subdivision, in
terms of having rights available thereafter.
BRENNAN ACJ:	But do I take it, that that approach, which you identify as a special leave point, is for the

Gallagher 10 5/3/93

purpose of leading to the approach that one then

adopts to a construction of these words in the

manner that you have just indicated?

MR FRASER:  Your Honour, in every case that comes before the

Court, that involves, at the end of the day a construction point, that is the purpose of the special leave application, to seek to exercise

those rights. The submission that I make is that

in the exposition of those rights here, it throws
up a question of the approach to construction of

grants of easements.

GAUDRON J: It comes back, does it not, to what is the

meaning of dominant tenement?

MR FRASER: In this case, yes it does, Your Honour.

GAUDRON J:  As used in the grant?

MR FRASER:  Yes, Your Honour. Your Honour, I have not taken

you to the other - - -

GAUDRON J:  On your argument, assuming, say, one lot is

subdivided into four and one of the parties remains

owner, even they would lose out?

MR FRASER: Certainly, Your Honour, and that would be a

consequence of the balance of the terms of the

easement read as a whole because of the need to

identify the registered proprietor. It is not at

all inconsistent with the balance of the easement

document.	I have not taken Your Honours yet to the
other terms.	I think Your Honour presiding

mentioned one of the terms about the registered

proprietor.

But when one goes - and again it is set out at

page 83 of the judgment of Justice Thomas - to the

covenants which were accepted by the Court of

Appeal as qualifying the terms of the grant and,

with respect, quite appropriately so, one sees that

an ordinary right of way, impose upon the granter	the terms of this particular grant, as opposed to
the obligation to repair with the right to recover the cost of that shared between the four registered
proprietors.

It is that that really provides a very

uncomfortable reading if one looks at it in terms

of seeing that the rights are available to people

who will no longer be able to be identified in

terms of either clause 2 or clause 3. The sharing

as to one quarter each respectively, is a further
indication that it was intended that that would be

an end to the rights and obligations, that is, no

extras would be introduced. That, of course, was

Gallagher 11 5/3/93

consistent with the circumstances at the time when

an exclusive subdivision was being created in 1987.

It would have been quite simple to use the expression "equally" in lieu of the expression "as

to one quarter each respectively", but that was not

done. There is also, of course, a dispute

reconciliation provision, but that is of only faint

assistance.

In my submission, the construction approach of

Mr Justice Lee, when one has regard to the

extrinsic circumstances, leads to the inevitable

conclusion that the members of the Court of Appeal,
with respect, erred in coming to the contrary

conclusion.

BRENNAN ACJ:	What is the definition of "dominant tenement"?
MR FRASER:	Your Honour, it is not set out in the material, but it is simply identified in the terms of the
form 10, grant of easement, by identifying the
certificate of title of the lot as it was then in
each case.
BRENNAN ACJ:	Form 10, is it, in the Real Property

Regulations?

MR FRASER: Yes, Your Honour. I have a copy before me. It

identifies a description of dominant tenement and

it has the words "delete if inapplicable", and it

has volume, folio, county, town, parish and

description, and in each case by reference

identically to what is set out in the terms of the

covenants.

GAUDRON J:	Have new titles issued consequent upon the subdivision?
MR FRASER:	I believe so, Your Honour, yes. Certainly the

new plan has been registered, and practically it is

only a formal step to request titles.

Your Honour, I am sorry, there is one other aspect of the special leave application. That

relates to the question of unconscionability and

imposing a constructive trust. Your Honours will have read the judgments and seen that the reasons

for not granting that relief really turned upon the

view that because Mrs Rainbow, although she had

delegated the authority to do the marketing to her

fellow joint venturer in selling the lot to my

client, she did not have personal knowledge that he

had made a number of statements to my client to

induce her to buy. In those circumstances there

was not that element of personal unconscionability,

or personal involvement such as to warrant the

Gallagher 12 5/3/93

intervention or the imposition of a constructive

trust.

That, in my submission, may also be an

important question. It is somewhat at odds with the

approach to the treatment of principals and their

agents. The point that was made in the Court of

Appeal was that there was no suggestion of lying by and accordingly no personal advantage. That seems,

with respect, to overlook the position that

Mrs Rainbow received the sale proceeds from my

client as well. So to that extent, having

entrusted the management of the marketing of the

particular development to Mr Appleby, who sold to

my client, she, in my submission, cannot be treated

any differently than if she had done it all

herself. Those are my submissions, Your Honour.

BRENNAN ACJ: Yes, Mr Haydon?

MR HAYDON:  Thank you, Your Honours. The short point is on

the construction issue: that the Court of Appeal

had no difficulty in construing the document on the

face of the words that were there and there was no

need to look at any extrinsic circumstances. That

is the difference of approach between the learned

trial judge and the Court of Appeal. The Court of

Appeal had no difficulty, whereas the learned trial

judge indicated that, with some hesitation, he

found in favour of the plaintiff on their

interpretation of the easement document.

So, in my submission, there is no difference

of approach, it is just a question on the

assessment of the Court of Appeal as to whether or

not the words were clear and all three judges came

to that conclusion. The document was easily

interpreted by the Court of Appeal, in my

submission, and it is in clear terms in the

judgments of Mr Justice Pincus and also

Justice Thomas. So, in my submission, there is no

special point which arises in relation to a

difference of approach in terms of the construction

point.

BRENNAN ACJ:	If one puts the question this way: in the grant of an easement in form 10, containing
covenants which run with the dominant tenement, is the term "dominant tenement" to be construed as
descriptive of the totality of the land, so described in the 10th section of form 10 or can it
be interpreted distributively, so as to include any
part of that land if subdivided?
MR HAYDON:	It is any part, because in this particular

easement document it refers to "or any part

Gallagher 13 5/3/93

thereof" which supports the second interpretation,

in my submission.

GAUDRON J: It is rather equivocal; it can mean any part

while it remains undivided, so that you have got

access to every part of it rather than to the

nearest point, for example.

MR HAYDON:  With respect, Your Honours, what happens is,

subdivision is not expressly dealt with as a matter

of this easement document, and that was a factor

that was taken into account by the Court of Appeal.

All four parcels of land were of such sufficient

size as to be further able to be subdivided under

the relevant legislation involving the Brisbane

City Council. So it was a matter that was open

equally to all the parties to subdivide and that

makes sense of the whole document. It is just in

this case, two of the four original lots were

sought to be subdivided; the others were to remain,

at the present moment at least, in their

unsubdivided form. So, in my submission, "or part

thereof" indicates that subdivision can take place

and not offend the easement.

BRENNAN ACJ:  You are seeking to look at the extrinsic

circumstances, are you, to construe this document?

MR HAYDON:  No, Your Honour; it is not necessary to go that

far. If it was necessary, and we did this before the learned trial judge, yes, the extrinsic

circumstances still assist us. But even on a

construction of the document, as it is, the way the

Court of Appeal approached it, in my submission,

the document does allow for subdivision; "or part

thereof" contemplates, in my submission, ordinarily

that you can subdivide your parcel of land.

BRENNAN ACJ:  Mr Fraser says that the form in which these

easements appear are the common form used in

respect of battle-axe easements in Queensland. Is

that correct?

MR HAYDON:  No, the evidence is indicated, and I can take

you to the relevant part of the record, it is

page 131 of the record where the applicant in the

affidavit speaks of being:

informed by John Dee, Consulting in common usage in Queensland.

We concede that that they are easements of a common type, that is providing reciprocal easement rights

over battleaxe subdivisions, but there is nothing

to demonstrate that the easements are other than in

their own individual terms. There was nothing to

Gallagher 14 5/3/93

indicate that the one Mr Appleby drew up in this

particular case was one that was used in common

form in terms of it word for word. So, each

easement then is construed, in my submission, on

its individual terms even although the type of

easement, that is the reciprocal easement over

slithers of land, is in common use. So, to that

extent I disagree with the proposition put forward

by my learned friend, Mr Fraser.

Your Honours, the more important part of this

case, in my submission, which I have set out in the
outline_ of submissions, was that no point of

general importance has been raised by the

application. The relevant paragraph which deals

with the question of importance is paragraph 10 of
the affidavit which starts at page 131 of the
record and goes on from there. As to each of those

matters, paragraph (a) through to (g), I have given

in short in the outline of submissions the reasons
in my submission why a point of general importance

has not arisen in this case. It is a particular

easement document that has been interpreted on its

own words. It is not in conflict with any

authority in New South Wales, New Zealand or

England which deals with the particular grant of

easement, or the words that are used in this

particular grant, and that the approach of the domestic use in terms of the end user of the

land - - -

GAUDRON J:	When you say it is not in conflict, that really is because there has not exactly been a decision on
this point except in South Africa, to the extent of the cases referred to in the judgments.
MR HAYDON:	Yes.
GAUDRON J:	The textbooks, on the other hand, all say it is

an open question, do they not?

MR HAYDON:  Yes, I concede that, yes. I interpreted the

material put forward by the applicant perhaps a little too strongly in the sense that they were

saying it was in conflict with authority. There is

no authority on the point is probably the neutral

way of putting it, and the question remains open, until the Court of Appeal decision, and the Court of Appeal in this particular case, in my

submission, has clearly demonstrated the

interpretation which ought to apply here and it

does not raise such a matter of general or specific

importance that special leave ought to be granted.

Unless there is anything particular that

Your Honours wish to hear from me about, they are

my submissions.

Gallagher 15 5/3/93

BRENNAN ACJ:  I take it that you would contend that the

judgment of the Court of Appeal does bind the
present applicant in the event of any proceedings
being brought by her to recover damages or in the
event of the present respondents seeking to enforce

the undertaking that was given as the price of the

interlocutory injunctions.

MR HAYDON: That is so, Your Honours, just as it binds all

the successors in title in relation to the now

subdivided land. The certificates of title have

issued as a result of the registration of the plan,
so the purchasers - and also the purchaser of the

applicant's property - will also be bound by the

interpretation.

GAUDRON J: That means, though, does it not, that the

present applicant is the only one who can take
action to have the register rectified should it

turn out that she is right?

MR HAYDON:	Yes, Your Honour.
GAUDRON J:	I grant it does suggest that there is a matter of some public importance, if she is arguably
right.

MR HAYDON: In my submission, not arguably right.

GAUDRON J: Well, the register is there, people are going to

be bound by it.

MR HAYDON:  Yes, but in my submission, the Court of Appeal

GAUDRON J: Yes, I think you have to put your argument, do

you not, that she has no arguable case?

MR HAYDON: Correct, and I do that based on the

Court of Appeal judgments which are, in my

submission, quite clear on that particular aspect

of the matter.

BRENNAN ACJ:  Yes. Thank you, Mr Haydon. Mr Fraser?

MR FRASER:  Your Honours, I sought some instructions about

the use of the word "type" as opposed to being more

explicit as to form - - -

BRENNAN ACJ: Could you speak out more loudly?

MR FRASER:  I am sorry. I sought instructions as to the use

of the expression, "type" in the passage set out in

Mrs Gallagher's affidavit. I am instructed that

that includes the concept of form, so not simply

limited to saying that there are easements of this

Gallagher 16 5/3/93

kind, as opposed to saying that easements with the

same terms are used.

BRENNAN ACJ:  But you are not in the position, I take it, to

demonstrate the easements which do follow these

words are the common form of easement?

MR FRASER:  Your Honour, I can only rely upon the evidence

that has been put before you.	My learned friend
has asserted that it does not extend to form.	The

use of the word "type" may have been a little

imprecise in this context, but that is why I sought

instructions.

BRENNAN ACJ: Yes. Thank you, Mr Fraser.

MR FRASER:	Thank you, Your Honours.
BRENNAN ACJ:	The Court will adjourn briefly to consider the

course it will take.

AT 12.46 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.57PM:

BRENNAN ACJ: There will be a grant of special leave in this

case, limited to the question of the construction
of the easements. That is not to say that the

evidence upon which the applicant sought to rely in

order to found an argument for a constructive trust

may not be referred to on the hearing of the

appeal, if that evidence should be relevant to any

question of the construction of the easements.

AT 12.58 PM THE MATTER WAS ADJOURNED SINE DIE

Gallagher 17 5/3/93