Hemmes Hermitage Pty Limited v Abdurahman

[1991] HCATrans 211

..

4

.

~ -~:r

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S35 of 1991

B e t w e e n -

HEMMES HERMITAGE PTY LIMITED

Applicant

and

YUSUF ABDURAHMAN and CYNTHIA

ABDURAHMAN

Respondents

Application for special leave

to appeal

BRENNAN J

DAWSON J

GAUDRON J

Hemmes 1 9/8/91

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 9 AUGUST 1991, AT 11.22 AM

Copyright in the High Court of Australia

MR c.s.c. SHELLER, QC: If the Court pleases, I appear with

my learned friend, MR I.G. HARRISON, for the

applicant. (instructed by Messrs Swaab &

Associates)

MR J.R.A. DOWD, QC: If the Court pleases, I app~ar for the

respondents with my learned junior,

MR J.R.K. PRYDE. (instructed by N.G. Marcells &

Co)

BRENNAN J: Yes, Mr Sheller?

MR SHELLER:  Your Honours, this is an application to appeal

from a unanimous decision of the Court of Appeal which was given on 22 March 1991 which dismissed

the applicant's appeal from a decision of the

Chief Judge in Equity. May I hand up to

Your Honours an outline of our submissions.

BRENNAN J: Yes, Mr Sheller?

DAWSON J:  Can I just ask a question before you start,

Mr Sheller?	Do I take it from these submissions
that you say	there is no such thing as an easement
of necessity	under the Torrens System?

MR SHELLER:  No, Your Honour. What we say is that if there

is an easement of necessity, it requires to be

registered in the ordinary way and that here,

whether this be described as an easement of

necessity or just an easement, it required to be

and could have been registered. The main thrust of

what we say, Your Honours, is that that not having

been done, the way round that defect is by saying

that here this is some implied undefined ancillary

right. We say that it is truly an easement, of

necessity or otherwise, and could have been

registered.

DAWSON J:  So the easement that was registered would go

something like, "A right of footway, together with

all such other rights as is necessary to enable

that right to be enjoyed"?

MR SHELLER: Well, Your Honour, in this case it could have

been, "An easement to enter upon the plaintiff's

land for the purpose of constructing and

maintaining this right of way." That is quite

susceptible to an easement and that should and

could have been done.

BRENNAN J:  I will ask you another preliminary question,

Mr Sheller. When this easement was first granted,

was the easement susceptible of enjoyment except

after alteration of the structure of the servient

tenement?

Hemmes 2 9/8/91

MR SHELLER:  It was granted in 1959, Your Honour. At that

point of time - and I do not know whether this is

an answer to Your Honour's question but may I seek

to answer it in this way. It was granted in 1959.

At that time it was untrafficable and of no

practical use and, indeed, His Honour the trial

judge said that it had never been of practical use,

for that reason. One simply could not pass along

it from one end to the other.

BRENNAN J:	What was the reason for that?
MR SHELLER:	The reason, substantially, Your Honour, was a

retaining wall. Your Honours, to explain that, can

I ask Your Honours to go to something which I

regret to say has not been included in the

application book but which are two annexures which were annexed to the trial judge's judgment. Could

I hand those up, Your Honours? They are A and B.

And if I might ask Your Honours to walk down the

easement or - that is perhaps the wrong way of

putting it, but to follow the line of the easement

from His Honour's judgment by reference to

annexure B.

His Honour deals with this at page 4 of the application book, and he said, at line 15:

I turn now to the reasons why the right

of footway has never been of any practical

use. The position at the present time is

shown by a plan, a copy of part of which is

annexed to these reasons marked "B".

And then he starts, as it were, from the southern-most point which is in the right-hand

bottom corner of annexure B, and one proceeds

north. The first part of that easement is over

lot 1. That is the part that proceeds from what is

described as a "stone wall" which is just above

reduce level 48.0, and then proceeds past what is

described as a "rock cliff" and then, when it turns

right, approximately that position, and for the

rest of that sort of hook shape, it is over lot 5.

Now, Your Honours, there were problems of

passage there as His Honour describes because at

the bottom of page 4 he refers to a drop of some 5.9 metres but, in a sense, that is the least of the problem because, as he says at the top of

page 5, perhaps:

with the aid of ladders -

that might have been passable. But, Your Honours,

if one follows the line round, as it were, the

bottom of the hook, past the intrusion of a stone

Hemmes 3 9/8/91

wall which is of slight significance, past the
construction of two brick compost bays which are

matters of subsequent construction, one finds the

right of way is cut across by the wall. Do

Your Honours see there is a hatched part which is

the existing retaining wall and the right of way,

as it were, runs on the outside of that to a point

where there are descending stairs and the degree of

that descent on page 6 is described as being in the

order of 5 metres.

Your Honours, the reason why the right of way,

as it were, passed over the side of the retaining

wall was that the retaining wall had an angled

side, as it were. It was built in from its

foundation into or towards the plaintiff's land,

lot 5. So that even if somebody had walked along

the top of the wall they would have ultimately

found themselves with one foot on the wall and one

foot over space.

BRENNAN J:	And this wall had been erected at the time of the grant of the easement?
MR SHELLER:	Your Honour, it appears, at least - and this

appears on page 6 at line 11 - from a plan of

September 1891 that the stairs were in existence in

this position.

DAWSON J: Which are the stairs, Mr Sheller?

MR SHELLER:  The stairs, Your Honour, are those stairs that

you can see at about line G on -

DAWSON J: Yes, which are only partly on the easement.

MR SHELLER: Which are only partly on the easement but

Your Honour can see that the wall goes along, as it

were, the side of the stairs. It is part of that

structure.

Now, Your Honour, the answer is that as we

understand the evidence, this wall was in place in

1959 when the easements were granted in that shape.

And it was that wall that presented the major

obstacle to passage on this right of way. I mean,

there was the drop at the earlier point of time but

it was this wall that would have required work,

estimated in the order of $50,000 to $100,000, to

construct something that would have either covered

over, as it were, built out into the right of way

with a descent down the side of the wall. That

involved not only the work of, as it were, cutting

into the wall but, indeed, as appears, perhaps

building a new retaining wall on the plaintiff's

land.

Hemmes 4 9/8/91

BRENNAN J:  Does an easement, a footway, carry with it

impliedly a power, without going on to any other
land, to alter the structural state of the land

over which the footway goes?

MR SHELLER:  Your Honour, for present purposes, and I think

in argument, we have accepted that if you had, for

example, something that was in the nature of a wide

carriageway, there are cases which suggest that the

dominant tenement can enter upon the carriageway to

put it in order and make it trafficable and

certainly, Your Honour, we have - - -

BRENNAN J:  Be it so. One could understand that there

might be a case, for example, destruction of the

brick compost bays - - -

MR SHELLER:	Oh, yes.
BRENNAN J:	- - - if they were simply obstructing the

pathway, but the question is whether or not there

is involved in the grant of a footway a right to

expend those large amounts of money on structural work on the stone wall and so forth without going on to the land at all.

MR SHELLER:  If one could pass along the footway and do it,

Your Honour?

BRENNAN J: Yes.

MR SHELLER:  It has just been accepted in the case that that

would be impossible to do, and I must confess to

Your Honour that the whole case has turned on the

basis that it would be necessary to go on to the
plaintiff's other land and approach it and repair

it by those means.

BRENNAN J: Well, be it so, but even if one went on to the

other land, does the advanced footway carry the

right to change the structure of the servient

tenement?

MR SHELLER:  Your Honour, I would accept that it did and I

think that - it is not a matter that I have looked

at recently, Your Honour, but we would accept that

in the ordinary course a right of footway would

enable the dominant tenement to go along the

footway and repair it, assuming he had no other

easement and, indeed, to some extent, as has been

said in argument and said in the Court of Appeal,

that seems to be implied in the Treweek case which

Your Honours may remember was a case where there

was a substantial cliff side and there was a

question as to whether or not that particular right

of footway had become obsolete. Now, it was not

directly dealt with by the High Court but it seemed

Hemmes 9/8/91

to have been assumed in that case that that footway

could have been put into such order as was required

to make it trafficable.

DAWSON J:	By the construction of steps?
MR SHELLER:	By constructing steps or whatever was

necessary. But our point, Your Honours, is that,

with respect, be that as it may, one cannot, in the
state of the title and in the light of section 42,
come upon the rest of the plaintiff's land with the
sort of requirements that would be required here,

considerable and inconvenient work to carry out

work on the footway or to build structures on the

plaintiff's land for that purpose.

GAUDRON J: So, this situation - I mean, the position that

you now assert to some extent came about by your

client acquiring two blocks of land?

MR SHELLER:  Well, no, Your Honour. What happened: we

first acquired lot 5 and then we acquired lot 1.

GAUDRON J: If the owners of lot 1 had adopted a different

attitude there would be no difficulty about putting

this footway in order?

MR SHELLER:  No, Your Honour. Can I indicate to Your Honour

on plan B what apparently used to happen? Where

Your Honours see in the present situation garages

at the bottom of page 276 was, prior to the current plaintiff's ownership of the land, there were steps

down there from lot 1. People used to pass through

lot 1, down those steps and then just follow what

is described as the closed walkway, go down the

steps and so down to the reserve, so that they

were, in part, following the right of way and, in

part, not.

BRENNAN J:	And they would be trespassing then upon lot 5?
MR SHELLER: Well, they no doubt had a licence or permission

to do so, Your Honour, but they certainly were not

using the right of way along its line.

GAUDRON J: But the point I was putting, Mr Sheller, was

there was always the possibility, whilst the titles

were in two lots - whilst there were two lots in

different titles - that the owners of lot 5 might

have allowed the other owners of the dominant

tenements to set foot on their land for the purpose

of making the right of way trafficable.

MR SHELLER:  Your Honour, I would accept that may be a

possibility. It just never arose because it was

never used. I mean, they just followed the path.

But we came upon the land and we rely upon

Hemmes 6 9/8/91

section 42 and say that this is something that is

simply not on the register and should be.

Otherwise, one finds what - and the passages that

are quoted from Mr Baalman's book indicate that

otherwise you have what is described as an
undefined right which is presumably attached to any
easement of a similar sort and which it is

impossible for any person who searches the register

to be aware of either as to its existence or its

extent.

DAWSON J: Well, that depends how you look at it, does it

not? I mean, if you see an easement, a footway,

over the land, then it is not really such a great

step to say, "And that carries with it" - or, put

it another way, that the servient tenement is

subject to such other rights as is necessary to

make the footway useful.

MR SHELLER:  Your Honour, we respectfully submit that it is

because by searching the register that would be

entirely undefined.	It is unknown what they may
do.

DAWSON J: Well, you cannot draw a dotted line to define it

but it is defined in terms of necessity.

MR SHELLER:  One has a footway which, as far as the register

shows, is a trafficable passable footway. Now,

there is nothing from that that would suggest that

there is any need at all to go on the plaintiff's

land to do any work, least of all to do the sort of

work that is proposed here.

DAWSON J: There might be all sorts of things with an

easement. You would be wise to go and look at the

land and see how the easement on the plan works

out, are you not, before you - - -

MR SHELLER:  But then, Your Honour, one is departing from

the register, that is the point.	And then one is
looking at it, Your Honour, and then one is forced

to make some judgment as to what this would

necessitate. The point that we seek to make,

Your Honour, is that that is -

DAWSON J: But it is not departing from the register in the

sense that there is another interest in the land

which is different from that which is shown in the

register. What is shown is a footway, and if that

carries with it certain rights, however

ill-defined, you are not really departing from the

register.

MR SHELLER:  Your Honour, it, of course, depends whether you

do treat it as an easement of necessity, which is

perhaps an expression that does not advance one

Hemmes 7 9/8/91

very much in this particular case, but if one

emphasizes the "easement" side of that, then

section 42 directly applies to it.

DAWSON J: Yes, I know, but "easement of necessity" is

merely a mode of expression to proceed by way of analogy but what you are really talking about is

just a right of footway and what that right carries

with it.

MR SHELLER: Well, that is the way that the Court of Appeal

approached it. They said that this is some inbuilt

ancillary and undefined right. Now, our answer to

that, Your Honour, is that there may indeed be -

and we would not suggest for one moment that there

cannot be ancillary rights of various sorts - but

what one is dealing with here, Your Honour, is a

right of a very extensive and substantial sort

which is susceptible of notification. It can,

indeed, be an easement of necessity. There is no

problem about that, it falls within the definition

of an "easement of necessity" or "an easement".

DAWSON J: Then if there is such a thing, as is pointed out

somewhere, as an "easement of necessity", there may

be another easement of necessity to enable you to

exercise the easement of necessity.	I mean, you
keep on going.

MR SHELLER:	Yes. But, Your Honour, if there is a right to enter upon the land of the plaintiff, apart from
the footway, to construct and maintain the footway,
that is susceptible of - - -

DAWSON J: Well, I suppose it is but, for example, take the

compost bins which I think you concede, apart from

the question of whether the easement ceases to
exist at all, the owners of the dominant tenement
have the right to remove because they go across the

- well now, is it really sensible to say that they

can only remove that in so far as they can confine

themselves within the footway for the purpose of

effecting the removal? That is the way you put it,

is it not?

MR SHELLER: Yes, Your Honour.

DAWSON J:  If they step one inch to the left or right of the

boundaries in the process of removing them, they

are trespassing.

MR SHELLER:  Yes. I mean, of course, in that particular

case, Your Honour, they may well be entitled to

require the servient owner to remove them, he

having built them there. But, Your Honour, it

comes to that but while, in a sense, it appears - I

mean, there is a reference in the President's

Hemmes 9/8/91

judgment to Portia's speech in the Merchant of

Venice but, Your Honour, the critical thing here is

that if such a right is to be enjoyed it should be

on the register. That is the point. There is in

this particular case, whatever may have been the

position in the Merchant of Venice, there is an
ability to define simply by granting the right to

enter upon the land for this purpose.

Can I just emphasize to Your Honours what is

said, firstly, about the work that is here involved

because - - -?

BRENNAN J:  Can I just ask you this question before you

proceed to it? This is an application to

extinguish the easement, is it not?

MR SHELLER: Yes, Your Honour.

BRENNAN J:  Can the matter be summarized as saying if there

be a right of the kind for which the respondents

contend to go on to your land to put it into order,

then it is common ground that the easement should not be extinguished. Equally, if it is not their

right to go on to your land for the purposes of

making it trafficable, is it common ground that it

should be extinguished?

MR SHELLER: Well, that is certainly the way the Chief Judge

in Equity approached it, Your Honour.

BRENNAN J:  And is it still the situation? In other words,

if we were to take this application on board, would

it lead, inevitably, to an order one way or the

other, dependent upon the resolution of the

question that you are agitating?

MR SHELLER:  Your Honour, I cannot - and I do not mean to

avoid Your Honour's question - speak for my learned

friend on that but certainly, as far as we are

concerned, and certainly this seems to have been

the approach of the Chief Judge in Equity, that if

one found, as one finds here, an untrafficable

right of way, the only way in which it can be put
in order - and this is the evidence - is by coming
on to our land. Therefore, if the
defendants/respondents cannot come on to our land,

the right of way is of no use to it and,

accordingly, it suffers no substantial injury by

the extinguishment of the right of way and

therefore it comes within section 89(l)(c).

BRENNAN J: But if it was ever thus, does that have anything

to do with it?

MR SHELLER:  No, Your Honour, we would respectfully submit.

We would respectfully submit that that was the

Hemmes 9 9/8/91

way - we approached it in two ways: we approached

it on the basis, firstly, that it was obsolete.

Now, His Honour held that it was not obsolete, it

would not fall within subsection (l)(a) for reason

that while it might now be obsolete, it had not

always been obsolete. But we do not press that, we

simply rely upon (l)(c).

BRENNAN J:  What is the wording of (l)(c)?

MR SHELLER:  Yes. Can I hand Your Honours up copies of

the - there are a number of sections but included

within that, Your Honours, is section 89. Now, it

is at page - I think it is 3142.2 in that print.

Your Honours, section 89(1):

Where land is subject to an easement ..... the

Court may from time to time ..... by order

modify or wholly or partially extinguish the

easement, restriction or obligation upon being

satisfied -

and then it comes down to (c):

that the proposed modification or -

easement -

will not substantially injure the persons

entitled to the easement, or to the benefit of

the restriction or obligation.

Now, if I could ask Your Honours to go to the

judgment of the Chief Judge in Equity, at the top

of page 12 of the application book, it is said:

The plaintiff, however, submits that in

doing any work necessary to make the

right-of-way trafficable the defendants and

their contractors and workmen would not be

entitled to come upon its land except such

part of it as is the subject of the right of

footway. If this is correct, although the

evidence did not specifically deal with this

point, it would seem to be unarguable that the

work required to be done could not be done in

such a confined space. If this were so, then

the right-of-way would be of no use to the

defendants and its extinguishment would not

substantially injure them.

Now, Your Honours, that is the way in which it was

dealt with and our application dismissed, both

before His Honour and before the Court of Appeal.

So that we would submit, Your Honours, that this

point of, we would respectfully submit, fundamental

Hemmes 10 9/8/91

importance to section 42 and easements of this

sort, is squarely thrown up in this case.

Now, Your Honours, we refer in paragraph 4 of

our outline to what is said about the work, the

amount that would be involved, that it would be

major and, we submit, could only be achieved by

corning on to our land and as His Honour,

the President, I think referred to this, but

certainly that our existing arrangement of walkway

and stairs on the northern boundary, there would be

a considerable dislocation to that, and we submit

it would also involve permanent fixtures being

erected on part of the plaintiff/applicant's land.

DAWSON J:  Can I stop you there just to see where the facts

lie? It is said, is it not, that it would be

possible, by reasonable use of your client's land,

outside the footway, to make the footway

trafficable, usable?

MR SHELLER:	Yes.
DAWSON J:	And it is that reasonable - you dispute that,

perhaps, but that is not the question we - - -

MR SHELLER:  Your Honour, when one says "reasonable", I am

sorry - I mean, there is no doubt that there is

evidence that by corning on to our land it can be

done.

DAWSON J: Yes. And, no doubt, there would be a dispute as

to what was reasonable or not, but that is not an

area we are concerned with because your point here

is simply that any right to use your client's land

other than the defined area of the footway
constitutes an additional easement which is not

allowable under the Torrens System .

. MR SHELLER: Precisely.

DAWSON J: Because it is not shown on the title.

MR SHELLER: Yes.

DAWSON J:  And that is what we are arguing about?

MR SHELLER: That is what we are about, Your Honour. But

when Your Honour says that the nature of the work

and the extent, some - if I could just take that up

by inviting Your Honours' attention to part of the

President's judgment at page 31 of the application

book. It shows the extent of what is here asserted

by the defendant/respondent because His Honour

says, at about line 7:

Hemmes 11 9/8/91

Questions will arise as to whether an

asserted interest is for the stated purpose or

not, is reasonable or not, or involves conduct

which is acceptable or excessive. Such

questions involve fact and degree. In default
of agreement between neighbours, courts must
settle differences about such questions. In

doing so, they will take into account the

limits of the -

and then the quote is -

"nebulous criterion, necessity" as it

derogates from the right of the owner of

land -

Now, that is what we face, Your Honour, if our

argument is wrong. We say that this can quite

readily be dealt with under the Act by the grant at
the appropriate time of the appropriate easement.

DAWSON J: But the difficulty I have is that the fact that a right which is notified on the title is ill-defined

is a different thing from a right which is not

notified at all, an interest.

MR SHELLER: Yes, it is, Your Honour. But what we say,

Your Honour, is that that points up - that would be

true of every easement of this sort, if it is

right, Your Honour, that this undefined right is to

be gauged by what is described as a "nebulous

criterion".

DAWSON J: But that seems to be inherent in the idea of an

easement. I find more help in Mr Baalman than I do

in Shakespeare, and that passage which is set out

at pages 40 to 41 seems to set out the position

quite clearly, that at common law, an easement did

carry with it pertinent rights. And in so far as

that is not inconsistent with the Torrens System -

and you say it is - well - - -

MR SHELLER:  I mean, Your Honour, in the common law system

there was no problem in describing this sort of

thing as an easement of necessity. We say here, if

this is correctly described as an easement of

necessity, then it requires to be entered on the

folio.

BRENNAN J:  But do you say that the Real Property Act

apart, that there would have been a right to enter

upon your property?

MR SHELLER:  Your Honour, there would be a powerful case for

saying there was an easement of necessity.

Hemmes 12 9/8/91

BRENNAN J: Well now, how does that accord with your

proposed grounds 1 and 2?

MR SHELLER: It does not, Your Honour, and I should withdraw

those because I would not seek to argue that,

Your Honours. What I would seek to argue is quite

simply that if this is described in common law as

an easement of necessity, it requires to be

registered under the Torrens Title System.

BRENNAN J: Could you describe what the extent of your

concession is as to the easement of necessity in

order that we can be quite precise as to the issue

which you wish to ventilate?

MR SHELLER:  To do that, Your Honours, may I just ask

Your Honours to look at the decision of

Mr Justice Parker, as he then was, in Jones v

Pritchard, if I can hand that up to Your Honours.

Your Honours, this was a case about a building

which was constructed or two buildings which had a

party-wall, a transfer which produced the result

that each building owner owned half the wall, as it

were, divided down the centre, and then a question

as to the repair of chimney flues which intruded

into both sides of that division.

Now, if I could ask Your Honours to go to

page 635 at the bottom of the page. One party

having sought to intrude upon his neighbour's land

in order to do this, His Lordship said:

The question I have to determine is

whether, under these circumstances, the

defendant is liable in respect of nuisance.

Now if a man grant a divided moiety of an

outside wall of his own house, with the

intention of making such wall a party-wall

between such house and an adjoining house to

be built by the grantee, the law will, I

think, imply the grant and reservation in

of such easements as may be necessary to carry	favour of the granter and grantee respectively
out what was the common intention of the
parties with regard to the user of the wall,
the nature of those easements varying with the
particular circumstances of each case.
Now, Your Honours, I accept that as being the

common law.

DAWSON J: But you concentrate on the word "easement",

Mr Sheller.

MR SHELLER: Yes.

Hemmes	13	9/8/91
DAWSON J:	It is not used as a term of art there.	The

rights that are in question have been called

"pertinent rights", "secondary rights" but the

principle on which it all rests is that when you

grant something you also grant that with which to

enjoy what you have granted and the name.does not

matter.

MR SHELLER: Well, Your Honour, I was going to refer, by way

of contrast to what His Lordship said at the top of

page 638, in the sentence there. By contrast, we

would say, His Lordship says, in the first

sentence:

Once again, the grant of an easement is

prima facie also the grant of such ancillary

rights as are reasonably necessary to its

exercise or enjoyment.

DAWSON J:  And if you go on:

Thus the grantee of an easement for a

watercourse through his neighbour's land may,

when reasonably necessary, enter his

neighbour's land for the purpose of repairing,

and may repair, such watercourse.

And so on.

MR SHELLER:  Yes. Well now, what we say here is that

whether one truly describes this as an easement of

necessity or simply as a right to go upon our land

for this purpose, under section 42 it requires to

be registered under the Act.

DAWSON J: Well, that is only if you seek two easements

instead of one and perhaps you only see one.

MR SHELLER: Well, Your Honour, of course it turns upon

whether or not one can imply into the existing

easement a right to come upon our land and perform

these works that are suggested, and we submit one

cannot.

DAWSON J: But if you granted the easement, you grant all

those other rights which are necessary to enjoy a

primary grant.

MR SHELLER: Well, Your Honour, we submit - and I realize

that I am repeating myself, but - - -

DAWSON J:  So am I.

MR SHELLER:  - - - there is an important distinction. The

important distinction here is - and to some extent,

of course, this may depend upon the extent of what

is sought to be done here. What is sought to be

Hemmes 14 9/8/91

done - somebody looks at the register and sees

marked out on the transfer two lines with three

feet between them and described as a "right of

way". Now, that is what one sees. Now,

Your Honours, what is asserted here is that in this

particular case, and presumably any other case of a

similar sort, that carries with it the right to

come upon our land and carry out the sort of works

that are suggested here.	Now, we would
respectfully submit - - -

GAUDRON J: Well, you cannot take that further step, the

sort of works that are suggested here, because the

question of what might be reasonable or even

necessary has really been left to one side, has it

not?

MR SHELLER:  It has certainly been left to one side in any

case that I am aware of, Your Honour. I mean, one

is talking here about what, with all respect, one

might regard as quite simple situations: walking

across a field to get to a well, or something of

that sort.

GAUDRON J: Yes. Well, there was not any precise evidence

about how this walk.way might be made trafficable,

really, was there?

MR SHELLER: There was, Your Honour. There was an expert

called who described the sort of work, truly in a

conceptual rather than a precise way, but in a

conceptual way which was in the order of, he said,

$50,000, but he conceded it might be $100,000.

GAUDRON J: Well, the price does not worry you. In fact,

from one point of view you might think the more

expensive the better.

MR SHELLER:  Your Honour, in one sense, what Your Honour

says is right but the matter of concern is not

that, the matter of concern is the effect this has

in terms of section 42, that is it, that is what it

is all about.

GAUDRON J: Yes, and in that context, the sort of works that

are suggested here is simply an irrelevant

consideration. The only matter that has to be

taken into account is that a foot is set on land

beyond the boundaries of the right of way.

MR SHELLER:  Your Honour, if it was a foot, we would not

be - this is major constructual work.

GAUDRON J:  You see, I have some difficulty about that. I

would have thought that was comprehended in the

question of what is reasonably necessary and that

it was left aside, that the issue at the moment was

Hemmes 15 9/8/91

really confined to that of trespass, if you like;

trespass or non-trespass.

MR SHELLER:  Your Honour, perhaps one could put it another

way, that the problem or the consequence of what

has been found here is dramatic in this ·particular

case.

GAUDRON J: But, you see, the problem is - one may accept

that, but when you say that, one comes to matters

of degree rather than matters of section 42 and

questions of the register. I mean, if, going on to

the servient tenement to repair - to effect

reasonable repairs involves no trespass, then the

issue is what is reasonable, that is all.

MR SHELLER:  Your Honour, we would not accept - and perhaps

I have accepted this, but I do not intend to accept

that to come on to our land for any purpose related

to the construction or repair of this easement is

justified in the light of the state of the title.

BRENNAN J: Well now, that really is the point that you have

to address, having regard to your concessions. In

other words, we can leave aside the question of

this huge wall and the extent of the major

structural works that have to go into it. Let it

be assumed that the grass is long; that the only

way in which you can get a mower in is through your

land, and the question is, "Does the grant of the

footway carry with it, without any further

registration, the right to bring a mower across to

mow the piece of grass?", and your answer has to

be, "No"?

MR SHELLER:	Yes.
BRENNAN J:	And to make that answer good you have to

contend, I should have thought, with the passage

set out from Mr Baalman's work on page 40 is wrong?

MR SHELLER:  Yes, Your Honour.

DAWSON J: Well, not necessarily wrong, that is at common

law, but that it is wrong in the Torrens System.

BRENNAN J: It is wrong in the Torrens System.

MR SHELLER:  It is wrong, Your Honour, from the point of

view of the Real Property Act. That is the point.

BRENNAN J: Yes.

MR SHELLER: While I realize that in a sense the drama of

what is proposed here does not matter, what it does

do is throw up the sort of problem that the

acceptance of Mr Baalman involves.

Hemmes 16 9/8/91

BRENNAN J: Well, it may not, you see, because it may be

that the problem that you are speaking of arises

because of the concession you have made of the

extent to which it is legitimate to do work upon

this footway. It is not a case of repair that we

are concerned with here, in other words~- nor making

good the footway, it is simply a matter of radical

structural change to the ground. So that that

which is depicted on the plan can be made into a

footway even though it affects the structural state

of the servient tenement. That seemed to me to be

a very major question but it has not been, on the

way in which you have put it, relevant.

MR SHELLER:  Your Honour, can I say this, that it is

entirely novel, this sort of proposition in terms

of case law, beyond the sort of simple things that

are referred to in such judgments as

Mr Justice Parker. While I come back to this, if

it is simply a question as seems to have been found

by the Court of Appeal that one looks at a

criterion of necessity, and that is the end of the

matter, then the consequence in this case is very,
very substantial interference with our rights

without any notice that that is the position.

BRENNAN J: But put it to the test not of a footway but of a

waterway and it is a question of clearing an

obstruction in a waterway, and it may be that the

obstruction will be at one point upstream or one
point downstream, what, in your submission, would

be the terms in which an easement might be drawn

for registration over a servient tenement?

MR SHELLER:  Can I give Your Honour, again, an example and

it is found in the decision at first instance of

Mr Justice Powell in Auerbach v Beck, (1985)

6 NSWLR 424. Could I hand up to Your Honours

copies of that. The particular passage that I want

to go to, Your Honours, is found at page 4420 - it

is just below the letter D, a reference to:

Ward v Kirkland would seem to establish,

first, that the right to enter adjoining land

for the purpose of maintaining an external

wall is a right susceptible of grant -

Now, Your Honour, what we would submit is that in

the illustration Your Honour has given there is no

problem in granting a right to enter adjoining land

for the purpose of maintaining a waterway.

BRENNAN J:	And having it registered as an easement.
MR SHELLER:	And having it registered as an easement or,

indeed - yes, Your Honour. Now, that is what we

seek to say here, and that it comes back - - -

Hemmes 17 9/8/91

DAWSON J: Would there be pertinent rights attached to that

easement?

MR SHELLER:  Your Honour, I suppose it must be acknowledged

that there are always going to be ancillary rights

possible in any easement. I hope I am not making

some devastating concession, Your Honour.

MR DOWD:	I want to make sure I get that down.
MR SHELLER:	But, Your Honour, what I have in mind is that

the fundamental grant here to come on to our land

for the purpose of construction and repair is

susceptible of grant and at least, if no more, the

person who acquires the land subject to that has

notice of what the rights are. Now, that is what we are seeking to say. There seems no reason why that should not be so.

Your Honours, just by way of illustration -

and again, Your Honours, may I this time hand up

both the the memoranda of transfer that were

involved. There is only one part of one of them

that I would invite Your Honours to look at. If

Your Honours look at the one which has stamped at

the top "246222" which is for the benefit of lot 2,

which is the respondents' land, over lot 5, that is

the right of way which is simply described as the
right of way 3 feet wide, but at the bottom one

sees reference to another easement and over the

page an example of a draftsman in respect of an

easement to deal with wires and pipes and that sort

of thing, specifically or expressly providing for the making, the lay-out, re-laying, construction,

maintenance, cleansing, repair, and so on. There,

Your Honours, is an example of the sort of

draftsmanship that can be used in order to grant a

right of the sort that is claimed here. So that

there is, we would respectfully submit, nothing

surprising or unusual.

DAWSON J: But that is a practice which Mr Baalman describes

as "of dubious merit".

MR SHELLER:  Your Honour, we do not accept that. We submit,

Your Honours, that in a case such as this it has

every merit because it makes plain and it complies

with section 42. Your Honours, we respectfully

submit that it is a matter of great importance that

section 42 should not be intruded upon by what are

simply described as undefined rights which are to

be defined or determined by this criterion of

necessity - can I add this, Your Honours - unless

there is some real reason of conveyancing why that

should be so, and there is no such reason.

Hemmes 18 9/8/91

Your Honours, what I have said, I think I have

said, no doubt, more shortly and succinctly in what

we have handed up but that is our submission why

this application should be granted.

BRENNAN J:  Thank you, Mr Sheller. Mr Dowd.

MR DOWD:  Your Honours, I did take the trouble to note my

learned friend's concession, the words being, "I

suppose there are always going to be some ancillary

rights to every easement." This case proceeded on

certain assumptions about the right of way which

Her Honour Justice Gaudron has, to some extent,

underlined by saying that at some point in time the

right to use a right of way can be exercised at any

part of it from any part of it and if at some time

lot 5 and lot 2, the other side of the right of way

or part of it, had been in different ownership, the

owner of the dominant tenement is perfectly

entitled to enter that right of way at any point in

time along that right of way and pass and repass

which means from the Hermitage end, along the

waterway or from the other dominant tenement, if

the permission of that person were obtained because

that is all that is necessary.

There has been an invalid assumption in the

submissions - and this is of course a special leave

application - that there is some distinction

between a common law right and a right under the

Real Property Act. There is no such distinction in

law except in terms of prescriptive rights and that

question is not argued here. One gets a right and

certain ancillary rights flow from it.

The Conveyancing Act 1919 was, of course, enacted after the Real Property Act 1900 and with

the full knowledge that section 42 existed. The

Conveyancing Act 1919 and the amendments of 1930

which are incorporated in it now are, in fact, laws

which apply both to common law title and to the

predicated on the basis that a right of way	Real Property Act and, indeed, are specifically
occurring under the Real Property Act and a right of way on common law title enjoy exactly the same
ancillary rights and, to take the Court's
terminology, it does not, in a sense, matter what
the words are, whether it is another easement or a right or a licence or whatever, the fact is the
common law - and it is the common law we are
dealing with here in respect of the explanation of the easement, the right of the owner of the
dominant tenement has ancillary rights that flow
from it. If it were an easement to build a sewer
or a water pipe, it would be necessary to go upon
that land and dig it out. An easement for

Hemmes 19 9/8/91

transmission lines would in fact require certain

works.

His Honour Mr Justice Kirby picks up and,

indeed, all three judgments pick up the fact that
it depends upon the circumstances of the-particular

case. Here, it is a right of footway. That is not

a right to pass from one end to the other but, in

fact, a right to pass over any part of it from any

part of it as long as one does not commit the civil

wrong of trespass and, in fact, that is a matter

which flows from the nature of this altogether.

The submissions that have been put before you

by the applicant here, of course, go to the
substantive part and do not, except in
submission 12, deal with this special leave

application and all my learned friend's submissions specifically relate to the particular title, not to

any general matter of principle.

BRENNAN J: Well, the general matter of principle, I think,

is that if there is an easement, a footway created,

that there is no grant of any ancillary rights

exercisable by the grantee by going on to the

adjacent land, whether to repair or otherwise.

MR DOWD:  Yes, that is their case. There is no decision at

law at any time, whether under the Real Property

Act or otherwise, to suggest that one is confined

to the precise boundaries of the particular

property.

BRENNAN J: Well, your argument has to be that, confining

the argument in that way, there is not sufficient

reason to doubt the correctness of the decision

appealed from?

MR DOWD:  Yes, Your Honour, and to that end I hand up an

outline of the respondents' submission, a copy of

which I have given to my learned friend.

BRENNAN J:  We need not trouble you further, Mr Dowd.

MR DOWD: If Your Honour pleases.

BRENNAN J:	Mr Sheller, have you anything to say in reply?
MR SHELLER:	Your Honours, the only matter that I - this is just to take up what Your Honour said to me about
the nature of the grounds of appeal, Your Honour,
and we would really be confining that to ground 5
and, I think, 6 and 7 flows from that. I have
nothing else to add, Your Honours.

BRENNAN J: Having regard to the concessions made and to the

issues to which the appellant would confine the

Hemmes 20 9/8/91

appeal were special leave granted, we do not think

that the conclusion arrived at by the Court of

Appeal is attended with sufficient doubt to justify

the grant of special leave. Accordingly, special

leave is refused.

MR SHELLER: If Your Honours please.

BRENNAN J:  Is there any other application in this matter before we call the next matter?

MR DOWD: Unless it follows the event, an order as to costs

of the application.

BRENNAN J:  What do you have to say, Mr Sheller?

MR SHELLER: There is nothing I can say, Your Honour.

BRENNAN J: It will be refused with costs.

AT 12.24 PM THE MATTER WAS ADJOURNED SINE DIE

Hemmes 21 9/8/91