Grittner v Hadley - [2008] QSC 268

SUPREME COURT OF QUEENSLAND

CITATION: Grittner & Grittner v Hadley [2008] QSC 268
PARTIES: RODNEY JOHN GRITTNER and
JOAN EILEEN GRITTNER
(Applicant)
v
DENISE JOY HADLEY
(Respondent)
FILE NO/S: SC 39/2008
DIVISION: Trial Division
PROCEEDING: Application
ORIGINATING Supreme Court at Mackay
COURT:
DELIVERED ON: 5 November 2008
DELIVERED AT: Townsville
HEARING DATE: 21 October 2008
JUDGES: Cullinane J
ORDER: Applications dismissed with costs to be assessed
CATCHWORDS: REAL PROPERTY – EASEMENTS – PARTICULAR EASEMENTS AND RIGHTS – TORRENS SYSTEM – REGISTRATION OF EASEMENT – DECLARATIONS - where applicants and respondent own adjoining land –where both parties purchased land from developer – where easement was not registered over the land at such time – where plan which was registered in 1982 shows an easement of way - where applicants seek declaration that an easement of way exists - whether an easement of way exists as a result of the registration of the plan
REAL PROPERTY – EASEMENTS – PARTICULAR EASEMENTS AND RIGHTS – RIGHTS OF WAY – CREATION – where applicants and respondent own adjoining land – where applicants seek statutory right of user over part of respondent’s land – where both parties purchased land from developer – where easement was not registered over the land at such time – where applicants seek to make commercial use out of land – where vehicular access in absence of statutory right of way difficult and dangerous – whether statutory right of user is reasonably necessary
REAL PROPERTY – ESTOPPEL - PROPRIETARY ESTOPPEL – REPRESENTATION - where applicants and respondent own adjoining land - where the applicants purchased the land on the representation by their real estate agent that an easement of way was in existence – whether an easement of way has been created by estoppel
Acts Interpretation Act 1954, s14B, s20(2)(a)
Integrated Planning Act 1997, s 6.1.24
Land Title Act 1994, s 82, s 105, s 184 (2)(a), s 201
Property Law Act 1974, s 53(1), s 53 (4), s 180
Real Property Act 1861, s 3, s 34, s 43, s 109, s 119A
Breskvar v Wall (1971) 126 CLR 376 cited
Hanny v Lewis (1998) NSW SC 285 cited
Hutchinson v Lemon (1983) Qd R 356 considered
Lang Parade Pty Ltd v Peluso & Ors (2005) QSC 112 cited
Lynch v White (1987) Q Conv R 54-257 cited
Nelson v Calahorro Properties Pty Ltd (1985) Q Conv R 54-
202 cited
Re Hodgkin OS 2985 of 1999 SC Brisbane (unreported) cited
Re Parimax (SA) Pty Ltd. (1956) 56 SR (NSW) 130 cited
Re Seaforth Land Sales Pty Ltd (No 2) (1977) Qd R 317 cited
Rock v Todeschino (1983) Qd R 356 considered
Tipler v Fraser (1976) Qd R 272 cited
Tregoyd Gardens Pty Ltd v Jarvis (1997) 8 BPR 97688 cited
COUNSEL: G F Crow for the applicants
The respondent appeared on her own behalf
SOLICITORS: Macrossan & Amiet Solicitors for the applicants
The respondent appeared on her own behalf

In this matter proceedings were instituted by the…

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 Grittner v Hadley

Details

AGLC: Grittner v Hadley [2008] QSC 268
Case: [2008] QSC 268
Decision Date: 5/11/2008

CaseChat Overview and Summary

The case of Grittner v Hadley involved a dispute over the existence of an easement over land in Queensland. The applicants and the respondent owned adjoining land, with both parties having purchased their respective properties from the same developer. The issue at hand was whether an easement of way existed over the applicants' land, as the respondent claimed, despite the easement not being registered at the time of purchase. The applicants sought a declaration that such an easement existed due to the registration of a plan in 1982 that depicted an easement of way. The court was required to determine whether the registration of this plan constituted an easement over the applicants' land.

The legal issues centred on the nature and effect of the registration of the plan in 1982, which depicted an easement of way over the applicants' land. The applicants argued that the registration of the plan created an easement, while the respondent contended that no such easement existed. The court had to consider whether the plan's registration alone was sufficient to establish an easement, or if other factors, such as the parties' intentions and the nature of the land, played a role in determining the existence of an easement. The court also needed to examine the relevant legal principles concerning the registration of easements under the Torrens system and the effect of declarations on land titles.

The court found that the registration of the plan in 1982 did not create an easement of way over the applicants' land. The court held that the plan's registration did not, by itself, establish an easement, as there was no evidence of an express or implied grant of an easement at the time of the sale. The court emphasised that the existence of an easement depended on the parties' intentions and the nature of the land, which could not be determined solely by the registration of a plan. Consequently, the court dismissed the applicants' claims, finding that no easement of way existed over their land. The court also ordered the applicants to pay costs to be assessed.

Orders

Orders of the court

Applications dismissed with costs to be assessed

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:	Grittner & Grittner v Hadley [2008] QSC 268
PARTIES:	RODNEY JOHN GRITTNER and JOAN EILEEN GRITTNER (Applicant) v DENISE JOY HADLEY (Respondent)
FILE NO/S:	SC 39/2008
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING	Supreme Court at Mackay
COURT:
DELIVERED ON:	5 November 2008
DELIVERED AT:	Townsville
HEARING DATE:	21 October 2008
JUDGES:	Cullinane J
ORDER:	Applications dismissed with costs to be assessed
CATCHWORDS:	REAL PROPERTY – EASEMENTS – PARTICULAR EASEMENTS AND RIGHTS – TORRENS SYSTEM – REGISTRATION OF EASEMENT – DECLARATIONS - where applicants and respondent own adjoining land –where both parties purchased land from developer – where easement was not registered over the land at such time – where plan which was registered in 1982 shows an easement of way - where applicants seek declaration that an easement of way exists - whether an easement of way exists as a result of the registration of the plan
REAL PROPERTY – EASEMENTS – PARTICULAR EASEMENTS AND RIGHTS – RIGHTS OF WAY – CREATION – where applicants and respondent own adjoining land – where applicants seek statutory right of user over part of respondent’s land – where both parties purchased land from developer – where easement was not registered over the land at such time – where applicants seek to make commercial use out of land – where vehicular access in absence of statutory right of way difficult and dangerous – whether statutory right of user is reasonably necessary
REAL PROPERTY – ESTOPPEL - PROPRIETARY ESTOPPEL – REPRESENTATION - where applicants and respondent own adjoining land - where the applicants purchased the land on the representation by their real estate agent that an easement of way was in existence – whether an easement of way has been created by estoppel
Acts Interpretation Act 1954, s14B, s20(2)(a) Integrated Planning Act 1997, s 6.1.24 Land Title Act 1994, s 82, s 105, s 184 (2)(a), s 201 Property Law Act 1974, s 53(1), s 53 (4), s 180 Real Property Act 1861, s 3, s 34, s 43, s 109, s 119A
Breskvar v Wall (1971) 126 CLR 376 cited Hanny v Lewis (1998) NSW SC 285 cited Hutchinson v Lemon (1983) Qd R 356 considered Lang Parade Pty Ltd v Peluso & Ors (2005) QSC 112 cited Lynch v White (1987) Q Conv R 54-257 cited Nelson v Calahorro Properties Pty Ltd (1985) Q Conv R 54- 202 cited Re Hodgkin OS 2985 of 1999 SC Brisbane (unreported) cited Re Parimax (SA) Pty Ltd. (1956) 56 SR (NSW) 130 cited Re Seaforth Land Sales Pty Ltd (No 2) (1977) Qd R 317 cited Rock v Todeschino (1983) Qd R 356 considered Tipler v Fraser (1976) Qd R 272 cited Tregoyd Gardens Pty Ltd v Jarvis (1997) 8 BPR 97688 cited
COUNSEL:	G F Crow for the applicants The respondent appeared on her own behalf
SOLICITORS:	Macrossan & Amiet Solicitors for the applicants The respondent appeared on her own behalf