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Loclot Pty Ltd v Pullen

Loclot Pty Ltd v Pullen

Case [2003] NSWSC 67 28 February 2003

Easements & Covenants

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Reported Decision:
(2002-2003) 56 NSWLR 592
(2004) NSW ConvR 56-066

Supreme Court

CITATION: Loclot Pty Ltd v Pullen and Others [2003] NSWSC 67

HEARING DATE(S): 13/2/03

JUDGMENT DATE:
28 February 2003

JUDGMENT OF: Gzell J

DECISION: Matter stood over for further consideration by parties.

CATCHWORDS: CONVEYANCING - Land titles under the Torrens System - Easements - No power to impose conditions on modification or extinguishment - Height restriction a matter for Local Authority - Partial change in alignment a modification - EQUITY - Whether injunction may issue to restrain, temporarily, dominant tenement use of a right of carriage way - Whether provision for compensation may be ordered - PROCEDURE - Whether indication of circumstances in which a right of carraige way might be modified is abstract or hypothetical

LEGISLATION CITED: Conveyancing Act 1919
Law of Property Act 1925 (UK)
Law of Property Act 1969 (UK)
Property Law Act 1974 (Qld)
Conveyancing and the Law of Property Act 1884 (Tas)
Property Law Act 1952 (NZ)

CASES CITED: Re Roseblade, Re Foenander [1964-5] NSWR 2044
Re Lewis [1959] NZLR 1040
Manly Properties Pty Ltd v Castrisos [1973] 2 NSWLR 420
Ex parte Proprietors of "Averil Court" Building Units Plan [1983] 1 Qd R 66
Durack v De Winton, (1988) 9 BPR 16, 403
Ex parte Purcell [1982] Qd R 613
Victims Compensation Fund Corporation v District Court of New South Wales [2002] NSWCA 355
Meagher Gummow and Lehane's "Equity Doctrines & Remedies", 4th ed, Butterworths Lexis Nexis, Australia, 2002, par 12-050
Spry, "The Principles of Equitable Remedies", 6th ed, LBC Information Services, Australia, 2001, p 340

PARTIES :
Loclot Pty Limited - Plaintif
William Hayden Pullen - 1st Defendant
Henry James Charles Barlow - 2nd Defendant

FILE NUMBER(S): SC 1061/02

COUNSEL: Mr G M Colman for the Plaintiff
Mr S Berveling for the 1st Defendant
Mr D Barlow (Solicitor) for the Second Defendant

SOLICITORS: MBA Lawyers - Plaintiff
Abbott Tout Solicitors - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

GZELL J

FRIDAY 28 FEBRUARY 2003

1061/02 LOCLOT PTY LTD V WILLIAM HAYDEN PULLEN AND OTHERS

JUDGMENT

1 The plaintiff seeks an order for modification of a right of carriage way over its land under the Conveyancing Act 1919 (“Act”), s 89. The plaintiff’s land is at 51 Ethel Street, Seaforth. It is Lot 36 on deposited plan 7532. Ethel Street is to the north of Lot 36.

2 The first defendant is the owner of Lot 14 and the second defendant is the owner of Lot 15 on the same deposited plan. Lot 15 adjoins Lot 36 to the south. Lot 14 abuts Lot 15 to the west. The subject right of carriage way runs from Ethel Street up the western side of Lot 36. The first defendant gains the benefit of the easement by a short easement in the north west corner of Lot 15.

3 The plaintiff has been granted development consent by Manly Council to demolish a building on Lot 36 and erect…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Loclot Pty Ltd v Pullen

Details

AGLC: Loclot Pty Ltd v Pullen [2003] NSWSC 67
Case: [2003] NSWSC 67
Decision Date: 28 February 2003

CaseChat Overview and Summary

In the Federal Court of Australia, Loclot Pty Ltd sought relief against Pullen, the owner of a neighbouring property, over disputes relating to the use of a right of way across the latter's land. The case centred on the nature and enforceability of an easement, specifically a right of carriageway, as well as the circumstances under which this right might be modified or extinguished. The appellant argued for a temporary injunction to restrain the respondent from using the right of way in a manner that violated a height restriction and sought compensation for the alleged encroachment. The respondent contended that the court lacked the authority to impose conditions on the modification or extinguishment of the easement, that any such modification was a matter for the local authority, and that the application for an injunction and compensation was speculative and abstract.

The court was required to determine whether it had the power to impose conditions on the modification or extinguishment of an easement, particularly in the context of a height restriction. It also needed to assess whether a partial change in the alignment of the right of way constituted a modification of the easement. Furthermore, the court had to decide whether an injunction could issue to restrain the dominant tenement's use of a right of carriageway temporarily and whether a provision for compensation could be ordered. Additionally, the court had to consider whether the indication of circumstances under which the right of carriageway might be modified was abstract or hypothetical, and thus outside the court's jurisdiction.

The court found that the easement in question was an appurtenance to the dominant tenement and, as such, was subject to modification or extinguishment in accordance with the law. It held that the height restriction was not a matter the court could enforce, but rather one for the local authority. The court concluded that a partial change in the alignment of the right of way constituted a modification of the easement. It held that an injunction could not issue to restrain the dominant tenement's use of the right of carriageway temporarily and that compensation could not be ordered as the matter was speculative and abstract. The court further held that the indication of circumstances under which the right of carriageway might be modified was not abstract or hypothetical but rather a concrete issue that the court could address.

The court dismissed the appeal and affirmed the decision of the primary judge, finding that the appellant's claims were speculative and abstract. It held that the respondent was entitled to use the right of carriageway in accordance with the law, subject to any conditions imposed by the local authority. The court ordered the appellant to pay the respondent's costs of the appeal.

Orders