Hoy v Allerton & Anor

[2001] QSC 440

SUPREME COURT OF QUEENSLAND

CITATION:

Hoy v Allerton & Anor [2001] QSC 440

PARTIES:

RICHARD DERICK HOY and MARY ROSE HOY
(applicants/first respondents in cross-application)
v
ANTHONY DAVID ALLERTON and ROSLYN MYRNA ALLERTON
(respondents/cross-applicants)
PATRICIA ANNE STEWART
(second respondent in cross-application)

FILE NO/S:

6002 of 2001

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court

DELIVERED ON:

25 October 2001

DELIVERED AT:

Brisbane

HEARING DATE:

27 August 2001

JUDGES:

Atkinson J

ORDER:

Amended application filed 6 August 2001 refused

Paragraphs 1 and 3 of cross-application filed 16 August 2001 allowed

CATCHWORDS:

REAL PROPERTY – EASEMENTS – CREATION UNDER STATUTE – CONSTRUCTION OF EASEMENTS – application to determine meaning of easement and rights of user – whether on proper construction easement entitles applicants to draw water from bore within area of easement registered over respondents’ land

REAL PROPERTY – EASEMENTS – EXTINGUISHMENT OR MODIFICATION – application in alternative for modification of easement pursuant to s 181 Property Law Act 1974 – meaning of ‘modify’ – whether proposed modification would substantially injure persons entitled to benefit of present restriction – reluctance of courts to increase rights granted to dominant tenement

Land Title Act 1994, s 86
Property Law Act 1974, s 181

Bland v Levi [2000] NSWSC 161, No 1456 of 2000, 6 March 2000, referred to

Bulstrode v Lambert [1953] 1 WLR 1064, considered
Elliot v Renner [1923] St R Qd 172, referred to
Finlayson v Campbell [1997] NSWSC, No 4796 of 1994, 4 September 1997, referred to
Frater v Finlay (1968) 91WN (NSW) 730, referred to
Grieve v Macarthur Capital Pty Ltd [2000] QSC No 7874 of 1999, 6 April 2000, referred to
Jones v Pritchard [1908] 1 Ch 630, referred to
Prospect County Council v Cross (1990) 21 NSWLR 601, referred to
Re Mason and the Conveyancing Act (1961) WN (NSW) 925, referred to
Robmet Investments Pty Ltd v Don Chen Pty Ltd [1997] NSWSC, No 3874 of 1996, 23 May 1997, referred to
SS & M Ceramics Pty Ltd v Kin [1996] 2 Qd R 540, considered
The Owners of SP 48754 v Anderson [1999] NSWSC 580, No 1765 of 1999, 15 June 1999, referred to
Zenere v Leate (1980) 1 BPR 9300, considered

COUNSEL:

F Dawson for the applicants/first respondents
AJ Macklin for the respondent/cross-applicants

SOLICITORS:

Butler McDermott & Egan for the applicants
Warren Gardiner & Co for the respondents

1. Richard Derick Hoy and Mary Rose Hoy (Mr and Mrs Hoy) and Anthony David Allerton and Roslyn Myrna Allerton (Mr and Mrs Allerton) own properties in Mapleton. Mr and Mrs Hoy have the benefit of an easement over the property owned by Mr and Mrs Allerton. Both Mr and Mrs Hoy and Mr and Mrs Allerton have brought applications in this court which essentially require a determination of the meaning of the easement and, in the event that it does not have the meaning for which either party contends, the amendment of the easement pursuant to s 181 of the Property Law Act