Kyren Pty Ltd v Cinema Place Pty Ltd

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.