Hemmes Hermitage Pty Limited v Abdurahman

This matter came before the High Court of Australia as an application for special leave to appeal. The applicant, Hemmes Hermitage Pty Limited, sought to appeal a unanimous decision of the Court of Appeal, which had dismissed its appeal from a decision of the Chief Judge in Equity. The respondents were Yusuf Abdurahman and Cynthia.

The central legal issue before the High Court concerned the nature and registrability of easements under the Torrens system, particularly in circumstances where an easement might be considered an easement of necessity. The applicant argued that even if an easement of necessity existed, it required registration in the ordinary way. The applicant contended that the defect of non-registration could not be overcome by asserting an implied, undefined ancillary right, asserting that the right in question was truly an easement that could and should have been registered.

The applicant's submissions suggested that an easement of necessity, if it exists, must be registered. The applicant's primary contention was that the easement in question, whether described as an easement of necessity or otherwise, was susceptible of registration and that its failure to be registered could not be circumvented by claiming an implied ancillary right. The applicant further argued that the easement could have been registered with specific terms, such as a right to enter the servient land for the purpose of constructing and maintaining the right of way. The applicant indicated that the easement was granted in 1959, and at that time, it was untrafficable and of no practical use due to a retaining wall, a fact acknowledged by the trial judge.