Kitching v Phillips

The case of Kitching v Phillips involved a dispute between the plaintiffs, Mr and Mrs Kitching, and the defendants, Mr and Mrs Phillips, concerning the rights to a driveway over the defendants' land. The plaintiffs sought to establish an easement over the driveway as a matter of necessity and implied reservation, arguing that the driveway was necessary for access to their property. The case was heard in the Supreme Court of New South Wales, with the primary judge's decision being appealed. The central legal issue in this appeal was whether the plaintiffs were entitled to an easement over the driveway as a matter of necessity and implied reservation, and if such an easement could be implied in the context of a Torrens title system.

The court considered the principles of easements, particularly focusing on the doctrine of easements of necessity and the maxim of non-derogation from grant. It was established that an easement may be implied where it is necessary to give effect to the common intention of the parties, and where it is necessary for the enjoyment of some other right expressly granted. The court held that extrinsic evidence concerning the circumstances known at the time of the original grant was not admissible in construing the grant of an easement under the Torrens system. The court further examined whether the maxim of non-derogation from grant could operate to imply the grant, or reservation, of an easement. The court found that the maxim could operate to imply rights that are proprietary in nature, even if they are not strictly characterised as easements.

Ultimately, the court determined that the plaintiffs were not entitled to an easement over the driveway as a matter of necessity or implied reservation. The court found that the maxim of non-derogation from grant did not apply in this context, as the parties had not contemplated that the land retained by the defendants would not be used in a manner inconsistent with the plaintiffs' rights. The appeal was dismissed, and the decision of the primary judge was upheld.