Litfin v Wenck

Case [2024] QSC 170

SUPREME COURT OF QUEENSLAND

CITATION:

Litfin v Wenck [2024] QSC 170

PARTIES:

CAROLYN JANE LITFIN

(applicant)

v
CAMERON DAVID WENCK

(respondent)

FILE NO/S:

BS No 4728 of 2022

DIVISION:

Trial Division

PROCEEDING:

Originating Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

9 August 2024

DELIVERED AT:

Brisbane

HEARING DATES:

27, 28 and 31 May 2024

JUDGE:

Williams J

ORDERS:

1.   The application is dismissed.

2.   I will hear further from the parties in respect of costs.

CATCHWORDS:

REAL PROPERTY – EASEMENTS – EASEMENTS GENERALLY – ABANDONMENT, SUSPENSION, EXTINGUISHMENT OR MODIFICATION – EXTINGUISHMENT – STATUTORY – where the applicant purchased land with knowledge of easement over the applicant’s property in favour of the respondent’s neighbouring property – where the respondent was originally the owner of both tenements at the time the easement was granted – where the applicant seeks modification or extinguishment of easement under s 181(1)(b) and (d) Property Law Act 1974 (Qld) to improve dwelling – whether the continued existence of the easement impedes the reasonable use of the servient land – whether easement secures to the respondent any practical benefits of substantial value, utility or advantage – whether practical benefits secured by easement include the views enjoyed by dominant tenement – whether the easement is limited to the protection of access to and enjoyment of light and air only – whether money would be adequate compensation for the loss of amenity and other collateral benefits – alternate ground whether the proposed modification or extinguishment will not substantially injure the persons entitled to the easement

Property Law Act 1974 (Qld), s 181(1)(b), s 181(1)(d)

Averono v Mbuzi [2005] QCA 295
Chatterton v City of Parramatta Council [2022] NSWSC 1603
Eucalypt Group Pty Ltd v Robin [2003] 2 Qd R 488
Ex parte Proprietors of “Averil Court” Building Units Plan No 2001 [1983] 1 Qd R 66
Frasers Lorne Pty Ltd v Burke (2008) 14 BPR 26,131; [2008] NSWSC 743
Guth v Robinson (1977) 1 BPR 9209
Masters v Snell [1979] 1 NZLR 34
Oldfield v Gold Coast City Council [2008] QSC 226
Oldfield v Gold Coast City Council [2010] 1 Qd R 158; [2009] QCA 124
Post Investments Pty Ltd v Wilson (1990) 26 NSWLR 598
Re Eddowes [1991] 2 Qd R 381
Re Henderson’s Conveyance [1940] 1 Ch 835
Re Parimax (SA) Pty Ltd [1956] SR (NSW) 130; (1955) 72 WN (NSW) 386
Re Rollwell Australia Pty Ltd [1999] Q Conv R 54-521
Stanhill Pty Ltd v Jackson (2005) 12 VR 224
Trewin v Felton (2007) 13 BPR 24,579; [2007] NSWSC 851

Webster v Bradac (1993) 5 BPR 12,032

COUNSEL:

L Copley for the applicant

M D Ambrose KC with K McAuliffe-Lake for the respondent

SOLICITORS:

Thynne & Macartney Lawyers for the applicant
Connor O’Meara Solicitors for the respondent

  1. This is an application for orders pursuant to s 181(1)(b) and s 181(1)(d) of the Property Law Act 1974 (Qld) (Property Law Act) for the easement over the applicant’s property in favour of…

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Litfin v Wenck [2024] QSC 170
Case
[2024] QSC 170
Decision Date

CaseChat Overview and Summary

The matter of Litfin v Wenck was heard by the Queensland Land Court, where the applicant sought either modification or extinguishment of an easement over their property in favour of the respondent’s neighbouring property. The applicant argued that the continued existence of the easement impeded the reasonable use of their land and that money would be adequate compensation for the loss of amenity and other collateral benefits. They also contended that the proposed modification or extinguishment would not substantially injure the persons entitled to the easement.

The primary legal issue before the court was whether the easement could be modified or extinguished under section 181(1)(b) and (d) of the Property Law Act 1974 (Qld). The court had to determine if the easement impeded the reasonable use of the servient land, if the easement secured any practical benefits of substantial value, utility or advantage to the respondent, and if money would be adequate compensation for the loss of such benefits. The court also had to consider whether the proposed modification or extinguishment would substantially injure the persons entitled to the easement.

The court found that the easement did not impede the reasonable use of the servient land, and that it secured practical benefits of substantial value, utility or advantage to the respondent, including the views enjoyed by the dominant tenement. The court also found that money would not be adequate compensation for the loss of these benefits, and that the proposed modification or extinguishment would substantially injure the persons entitled to the easement. Accordingly, the application was dismissed.

The court will hear further from the parties in respect of costs.

Orders

Orders of the court

1. The application is dismissed.

2. I will hear further from the parties in respect of costs.

Background

Background to the litigation

The parties agreed a document headed “List of Issues not in Dispute” dated 15 May 2024. These matters are largely reproduced below by way of factual background.Background facts The applicant is the registered owner of land located at 21 Mackay Street, Windsor (the Litfin Land) that is more particularly described as:(a)Lot 27 on SP192398 bearing title reference 50827382 (Lot 27); and(b)Lot 28 on SP192398 bearing title reference 50827383 (Lot 28). The respondent is the registered owner of the immediately adjoining land located at 25 Mackay Street (the Wenck Land) that is more particularly described as Lots 29 and 30 on RP19852 bearing title reference 17151031. The Litfin Land:(a)has approximately 20m frontage to Mackay Street and is approximately 70m deep, with a total area of 1,416m2;(b)is improved by a two-storey dwelling house (the Litfin House) and a swimming pool; and(c)has topography that slopes away from Mackay Street, in particular between the pool and the rear boundary of the Litfin Land. The Litfin Land also has the benefit of a development approval (the ROL Approval) for the reconfiguration (and ultimate extinguishment) of Lot 27 and Lot 28, to create a 470m2 vacant lot at the Mackay Street frontage of the Litfin Land (which contains an access easement burdening that lot and benefiting a rear lot), as well as a 946m2 lot at the rear of the Litfin Land on which the existing house and pool are located. The Wenck Land is improved by a three-storey dwelling house (the Wenck House). The Litfin Land and the Wenck Land are both located within the CR1 Character Residential Zone (CR1 Zone), and subject to the Traditional Building Character Overlay, as designated by the Brisbane City Plan 2014 (Version 28).[1][1]Version 29 is referred to in some of the expert evidence. No difference between Version 28 and Version 29 has been identified that is material to this application. The respondent and his former wife were previously the registered owners of the Litfin Land. On 2 September 2010, while the respondent and his former wife were the registered owners of the Litfin Land, an easement with dealing number 713443254 was registered in respect of the Litfin Land (the Easement).[2] The Easement burdens the Litfin Land (as servient tenement) and benefits the Wenck Land (as dominant tenement). [2]The Easement is on the title of both Lot 27 and Lot 28. Clause 1 of the Easement relevantly provides:“The Grantor hereby grants and transfers to the Grantee full right to the unimpeded access and enjoyment of light and air to through and for the Dominant Tenement and the windows, lights and apertures of the existing building or later building (or any building erected after the date hereof and any alteration to the existing or the alter building) on the Dominant Tenement over the Servient Tenement above RL 41.4 AHD and below RL 60 AHD (accordingly to Survey Plan 192398 lodged or to be lodged with the Department of Environment and Resource Management provided however that the chimney, TV antennae and toilet outlet/s or future toilet outlet/s attached to the building constructed on the servient tenement and which may exceed that height may remain) for the use and enjoyment of the said building without any obstruction or interruption caused by or subsequent upon the erection, construction, reconstruction, rising, making or suffering to stand or any building structure or thing whatsoever upon the said Servient Tenement to have and to hold as an easement the said right of light and air hereby granted unto the Grantee.”

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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