Hare v Van Brugge

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.