Macfarlan JA (at [1]); Barrett JA (at [2]); Tobias AJA (at [38])
Decision:
1. Order (2) made in the Equity Division on 20 December 2011 is varied by omitting the words "including by disconnecting the supply of electricity to the Inclinator".
2. The Annexure "A" to the orders made in the Equity Division on 20 December 2011 is varied by adding to paragraph (9) thereof, immediately after the word "Defendants" where first appearing, the words "will allow all electricity required for the operation of the Inclinator to be drawn from their domestic supply connection and".
3. Appeal otherwise dismissed.
4. That the appellants pay the respondents' costs of the appeal.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:
REAL PROPERTY - easements - particular easements and rights - right of carriageway - where an electrically driven inclinator system forms part of the servient tenement - where the inclinator system is a fixture - whether the right to pass and repass created by the easement includes a right to use the inclinator - REAL PROPERTY - easements - other matters - easement affecting Torrens system land - extent to which matters outside the register may be taken into account in construing the easement terms
Meryl Leslie Hare and John Hare - Appellants Richard van Brugge and Chiaki van Brugge - Respondents
Representation:
Mr V R W Gray - Appellants Mr R A Dick SC/Ms T L Wong - Respondents JGP Lawyers - Appellants Sparke Helmore - Respondents
File Number(s):
2012/16346
Decision under appeal
Before:
Slattery J
File Number(s):
2011/113695
Judgment
MACFARLAN JA: I agree with Barrett JA.
BARRETT JA:
Background
The parties to this appeal occupy adjoining houses at Seaforth.…
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.
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Details
AGLC
Hare v Van Brugge [2013] NSWCA 74
Case
[2013] NSWCA 74
Decision Date
CaseChat Overview and Summary
In *Hare v Van Brugge*, the New South Wales Court of Appeal considered a dispute concerning a right of carriageway easement over land that included an electrically driven inclinator system. The core of the disagreement revolved around whether the easement granted the right to use the inclinator itself, which was a fixture on the servient tenement. The case also touched upon the extent to which matters outside the Torrens register could be considered when interpreting the terms of an easement affecting registered land.
The legal issues before the Court of Appeal were primarily: (1) whether the right to pass and repass granted by the easement encompassed the use of the inclinator system; and (2) the principles governing the consideration of extrinsic evidence in construing easements registered under the Torrens system.
The Court reasoned that the easement, by granting a right of carriageway, impliedly included the use of any facilities that were an integral part of the means of passage over the servient tenement. The inclinator, being a fixture and essential for accessing the property, was considered to fall within the scope of the easement. The Court also addressed the admissibility of extrinsic evidence, indicating that while the register is paramount in Torrens land, evidence may be considered to clarify ambiguity in the registered terms, particularly where the easement's practical enjoyment is in question.
The Court of Appeal varied the orders of the Equity Division, specifically amending the terms relating to the disconnection of electricity to the inclinator and requiring the appellants to allow electricity for its operation to be drawn from their domestic supply. The appeal was otherwise dismissed, with the appellants ordered to pay the respondents' costs.
Orders
Orders of the court
1. Order (2) made in the Equity Division on 20 December 2011 is varied by omitting the words "including by disconnecting the supply of electricity to the Inclinator".
2. The Annexure "A" to the orders made in the Equity Division on 20 December 2011 is varied by adding to paragraph (9) thereof, immediately after the word "Defendants" where first appearing, the words "will allow all electricity required for the operation of the Inclinator to be drawn from their domestic supply connection and".
3. Appeal otherwise dismissed.
4. That the appellants pay the respondents' costs of the appeal.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]