SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
KYREN PTY LTD v CINEMA PLACE PTY LTD
Judgment of The Full Court
(The Honourable Justice Besanko, The Honourable Justice Vanstone and The Honourable Justice Layton)
11 April 2006
APPEAL AND NEW TRIAL - APPEAL GENERAL PRINCIPLES - ADMISSION OF FRESH EVIDENCE
REAL PROPERTY - EASEMENTS - PARTICULAR EASEMENTS AND RIGHTS - RIGHTS OF WAY
Appeal against orders made by Chief Justice dealing with nature and extent of rights of respondent under registered right of way – application by appellant to adduce fresh evidence – construction of terms of grant – relevant principles – words of Schedule 5 to Real Property Act 1886 considered – held, no reason to disturb findings of fact made by Chief Justice – application to adduce fresh evidence refused – appeal dismissed.
Real Property Act 1886 ss 57, 89; Supreme Court Rules 1987 r 95.15(b), referred to.
Yip v Frolich (2003) 86 SASR 162; Yip v Frolich (2004) 89 SASR 467; Gallagher v Rainbow (1994) 179 CLR 624; Trawl Industries of Australia Pty Ltd v Effem Foods Pty Ltd (1992) 27 NSWLR 326; Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896; Cannon v Villars (1878) 8 Ch D 415; Wimbledon & Putney Commons Conservators v Dixon (1875) 1 Ch D 362; British Railways Board v Glass [1965] Ch 538; Gibbs v Messer [1891] AC 248; Bond & Leitch v Delfab Investments Pty Ltd (1980) 26 SASR 462; Harris v Flower (1904) 74 LJ Ch 127; Bracewell v Appleby [1975] Ch 408; Jelbert v Davis [1968] 1 WLR 589; Todrick v Western National Omnibus Company, Ltd [1934] Ch 190; [1934] 1 Ch 561; White v Grand Hotel, Eastbourne Ltd [1913] 1 Ch 113; Robinson v Bailey [1948] 2 All ER 791; Ventura v Sustek (1976) 14 SASR 395; Commonwealth Bank of Australia v Quade (1991) 178 CLR 134; Chapman v Chapman [1946] SASR 217; Ah Toy v Registrar of Companies (NT) (1985) 10 FCR 280; Shean Pty Ltd v Owners of Corinne Court 290 Stirling Street, Perth Strata Plan 12821 (2001) 25 WAR 65; Barry v Fenton [1952] NZLR 990; United Land Company v Great Eastern Railway Company (1875) LR 10 Ch App 586; Newcomen v Coulson (1877) 5 Ch D 133; Williams v James (1867) LR 2 CP 577, considered.
KYREN PTY LTD v CINEMA PLACE PTY LTD
[2006] SASC 93
BESANKO J: This is an appeal from orders made by the Chief Justice after a trial in this Court. Generally speaking, the issue before the Chief Justice was the nature and extent of the rights of the respondent under a right of way conferred on its predecessors in title in 1921. The right of way was expressed to be “a free and unrestricted right-of-way” and by virtue of s 89 of the Real Property Act 1886 those words were deemed to imply the words in Schedule 5…
Keep reading for free
Create a free CaseChat account to read Kyren Pty Ltd v Cinema Place Pty Ltd and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
Details
- Case
- [2006] SASC 93
- Decision Date
CaseChat Overview and Summary
Kyren Pty Ltd, the respondent, appealed against orders made by the Chief Justice of the Supreme Court of South Australia concerning the nature and extent of rights of Cinema Place Pty Ltd, the appellant, under a registered right of way. The dispute arose from the construction of a building on the dominant tenements, which were adjacent to Vaughan Place, a private road. Kyren sought to enforce its right of way over part of Vaughan Place for the purpose of constructing a ten-storey building, including the use of motor vehicles for loading and unloading building materials. Cinema objected to the use made by Kyren of its right of way over the servient land, arguing that the proposed use was excessive and not within the scope of the right of way. The court had to decide on the principles of construction of the terms of the right of way created by the 1921 Memorandum of Transfer and whether the evidence provided by the appellant was admissible.
The court considered the relevant principles of construction for the terms of the grant, specifically examining the words of Schedule 5 to the Real Property Act 1886. It was determined that the trial judge's findings of fact were not to be disturbed, as there was no reason to question the judge's conclusion that the respondent would only use the easement in accordance with the extent of its rights. The court also examined whether the fresh evidence provided by the appellant was relevant and admissible, and found that it did not impact the orders made by the trial judge. Therefore, the appeal was dismissed, and the findings of the trial judge were upheld.
The court's decision resulted in the dismissal of the appeal, and the findings of the trial judge were upheld. The court found that there was no reason to disturb the judge's findings of fact and that the fresh evidence provided by the appellant was not relevant or admissible. The principles of construction for the terms of the grant were considered, and it was determined that the right of way was only to be used for the benefit of the dominant tenements, and not for bringing materials onto the site to be used elsewhere in the construction. The court also found that the proposed use of the right of way by Kyren was not excessive and was within the scope of the right of way.
The court considered the relevant principles of construction for the terms of the grant, specifically examining the words of Schedule 5 to the Real Property Act 1886. It was determined that the trial judge's findings of fact were not to be disturbed, as there was no reason to question the judge's conclusion that the respondent would only use the easement in accordance with the extent of its rights. The court also examined whether the fresh evidence provided by the appellant was relevant and admissible, and found that it did not impact the orders made by the trial judge. Therefore, the appeal was dismissed, and the findings of the trial judge were upheld.
The court's decision resulted in the dismissal of the appeal, and the findings of the trial judge were upheld. The court found that there was no reason to disturb the judge's findings of fact and that the fresh evidence provided by the appellant was not relevant or admissible. The principles of construction for the terms of the grant were considered, and it was determined that the right of way was only to be used for the benefit of the dominant tenements, and not for bringing materials onto the site to be used elsewhere in the construction. The court also found that the proposed use of the right of way by Kyren was not excessive and was within the scope of the right of way.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Since the trial, the building has been completed. The servient land has been compulsorily acquired by the Adelaide City Council. It is now a public road. The questions at issue are now relevant only to any claims for damages that either party might make, arising from events during the building work. Background The servient tenement is nearly all of that part of Vaughan Place running in a northerly direction and at a right angle to Rundle Street. The dominant tenements together form a rectangular parcel of land of about 1,000 square metres. They abut Vaughan Place on its western side, but do not abut Rundle Street. If not for the rights of way, they would be landlocked. The other three allotments making up the respondent’s parcel have access to roads to their north and west. The great part of the construction was managed from these frontages. However, at the time of the trial, the respondent planned to utilise its rights of way for vans and medium sized rigid body trucks unloading building materials, for four or five concrete trucks per day over two days and for access to the eastern facia of the new building by vehicles with moveable booms. Plainly, such vehicles would stand for a time in Vaughan Place, to some extent restricting other users. The terms of the grant of each right of way are endorsed on each 1921 Memorandum of Transfer. Once registered, such an instrument is deemed to be part of the Register Book: s 57 Real Property Act 1886. It provided: “…a free and unrestricted right of way over … the servient tenement”. Section 89 Real Property Act provides:The words “a free and unrestricted right-of-way” in any instrument shall be deemed to imply the words set forth in Schedule 5 hereto so far as they shall be applicable as fully and effectually as if set out in length in such instrument.Schedule 5 to the Act provides:A full and free right and liberty to and for the proprietor or proprietors for the time being taking or deriving title under or through this instrument, so long as he or they shall remain such proprietors, and to and for his and their tenants, servants, agents, workmen, and visitors, to pass and repass for all purposes, and either with or without horses or other animals, cart, or other carriages.Analysis The trial judge approached the matter on the basis that it was necessary, in construing the terms of the grant, to examine the circumstances prevailing at the time it was made. Upon the appeal, however, the respondent argued that it was only necessary to resort to matters of history where the words were ambiguous. It was suggested that the words of Schedule 5 could not be clearer or more comprehensive. The respondent relied on Yip v Frolich (2003) 86 SASR 162. There, Besanko J was called on to determine a slightly different question, namely whether the terms of an easement reserved in the 1933 memorandum of transfer of the property conferred a right of way for all purposes, or merely for purposes relating to laying and repairing water pipes. He determined that it was appropriate to consider the terms of the easement standing alone, and to go on to consider the circumstances surrounding its grant only in case of ambiguity. Finding that he needed to resort to the surrounding circumstances, Besanko J determined that the right of way was for purposes relating to drainage only.
Evidence
Evidence Before The Court
For the purposes of consistency between the description of the land in this appeal and in the judgment appealed from, it is easiest to set out the findings of fact which were made by the trial Judge as set out in [12] – [20] of the reasons for decision. These findings were not challenged on appeal.The dominant tenements are two rectangular allotments. They adjoin each other. One of them forms the corner where Vaughan Place makes a right angle turn, and the other is immediately south of that allotment. Together they form a rectangular parcel about 38 metres (the frontage to Vaughan Place) by about 27 metres.Two of Kyren’s allotments adjoin the dominant tenements on their western side. The fifth of Kyren’s allotments is on the western side of those two allotments, with a frontage to Frome Street. Two of the three allotments to which I have just referred have a frontage to the east-west section of Vaughan Place.All five allotments together form a roughly rectangular piece of land bordered on the north by the east-west section of Vaughan Place (the frontage is about 74 metres long), on the west by Frome Street (the frontage is about 35 metres long), on the south by other land and on the east by Vaughan Place.The north-south section of Vaughan Place is approximately eight metres wide and approximately 65 metres in length from Rundle Street to the point at which it makes a right-angled turn.On the western side of Vaughan Place between Rundle Street and the dominant tenements, is the Exeter Hotel, the frontage of which is on Rundle Street.On the eastern side of Vaughan Place there are two laneways or walkways running in an east-west direction. They provide access to land and premises lying between Vaughan Place and East Terrace. The eastern side of Vaughan Place is also bounded by buildings used for commercial purposes. On the eastern corner of Vaughan Place and Rundle Street is a building with a frontage to Rundle Street. Moving north along Vaughan Place are other commercial premises, a hotel (The Elephant & Wheelbarrow) being at the northern end of Vaughan Place.A narrow walkway or footpath runs from the northern limit of Vaughan Place, where it makes a right angle turn, through to North Terrace.The buildings facing onto Vaughan Place are no more than two or three storeys high.The surface of Vaughan Place is paved with concrete pavers. It is paved from side to side, with a footpath only on the western side adjoining the Exeter Hotel. Three or four small trees are growing along the western side. They appear to have been planted for decorative purposes.Preliminary issue – introduction of fresh evidence The appellant sought leave pursuant to rule 95.15(b) of the Supreme Court Rules 1987 to adduce fresh evidence on the hearing of the appeal. The factual material sought to be adduced is set out in [3] - [17] and [20] of an affidavit of Mr Theodore Samaras, developer and principal of Kyren, sworn on 1 July 2005. The affidavit of Mr Samaras is in response to an affidavit of Nicolas Christopoulos sworn on 19 May 2005. The affidavit of Mr Christopoulos annexes a site management plan (“SMP”) prepared by Kyren’s builder, Hansen Yuncken Pty Ltd, dated 22 November 2002, and includes a number of documents, including the tender lodged by the builder.
Decision
Reasons for decision
The appellant further argued that the judge was wrong to accept that the right of way would only be used by the respondent to benefit the dominant tenements, and would not be used to bring materials onto the site to be used elsewhere in the construction. I do not understand the relevant principle to be a matter of dispute. The right enjoyed by the dominant tenements is one to bring vehicles onto the easement in connection only with those properties: Shean Pty Ltd v Owners of Corinne Court290 Stirling Street, Perth Strata Plan 12821 (2001) 25 WAR 65; Bracewell v Appleby. Before the judge, the respondent maintained that the access it sought via the easement was solely referable to the dominant tenements. That was supported by the affidavit material. There was no cross-examination on that assertion. In my view the judge was entitled to act on the basis that the respondent would only use the easement in accordance with the extent of its rights. There is no reason to disturb the judge’s findings to that effect. In my view the appellant has not made good any of its grounds of appeal.Conclusion Irrespective of whether account is taken of the circumstances prevailing at the time of the grant, there is no change in the result in this matter. It is not often that the subtle difference in the approaches taken in Cannon v Villars and Yip v Frolich would yield a different result. In any event, the conclusions drawn from the historical material were open to the judge. The fresh evidence sought to be introduced is not such as to have an impact on any of the orders made and it would not be appropriate for this court to widen the ambit of the issues determined or the orders made. I would dismiss the Notice for Specific Directions dated 6 September 2000 and dismiss the appeal. LAYTON J: This is an appeal against the decision of a single Judge of this Court concerning the exercise of a right of way over land in Adelaide’s East End. It concerns principles of construction on the terms of a right of way created by a Memorandum of Transfer in 1921. The plaintiff in the action and respondent on appeal, Kyren Pty Ltd (“Kyren”) is the registered proprietor of five allotments, two of which abut Vaughan Place (“the dominant tenements”). Vaughan Place is a private road. Kyren sought and obtained orders enforcing its “free and unrestricted right of way” over part of Vaughan Place (“the servient land”). Kyren sought these orders enforcing the right of way for the purpose of constructing a ten-storey building (eight above ground). Kyren also sought these orders to allow motor vehicles onto the servient land, and for the purpose of the vehicles being loaded and unloaded in the course of the construction work. The defendant in the action and the appellant on appeal, Cinema Place Pty Ltd (“Cinema”), was the proprietor of the servient land, and objected to the use made by Kyren of its right of way over that servient land. The action before the trial Judge arose after Cinema obstructed the right of way and refused access to motor vehicles passing over Vaughan Place in order to get access to Kyren’s building site. Cinema argued that the proposed use of the right of way by Kyren was excessive and was not within the scope of the right of way.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.