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Long v Michie

Long v Michie

Case [2003] NSWSC 233 7 April 2003

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CITATION: Long v Michie [2003] NSWSC 233

HEARING DATE(S): 15, 16, 17 and 18 October 2002

JUDGMENT DATE:
7 April 2003

JURISDICTION:
Equity

JUDGMENT OF: Austin J

DECISION: See under heading "Conclusion"

CATCHWORDS: EASEMENTS AND RIGHTS OF WAY - right of way appurtenant to church property granted in 1856 - obstruction of right of way by closing of access, creation of gardens, construction of garage door, and parking of vehicles - whether evidence showed that right of way was abandoned at general law or should be extinguished under s 89(1)(b) Conveyancing Act - RIGHT OF WAY - EXTINGUISHMENT - whether right of way should be deemed obsolete so as to justify extinguishment under s 89(1)(a) Conveyancing Act - RIGHT OF WAY - REASONABLE USER - whether continued existence of right impeded reasonable user of servient tenements without securing practical benefit to the owner of dominant tenement, so as to justify extinguishment under s 89(1)(a)

LEGISLATION CITED: Conveyancing Act 1919 (NSW) ss 88, 89
Real Property Act 1900 (NSW) s 28K

CASES CITED: Cannon v Villars (1878) 8 Ch D at 821
Chatsworth Estates v Fewell [1931] 1 Ch 224
Couche v Adams [2002] NSWSC 27
Crossley & Sons Ltd v Lightowler (1867) 2 Ch App 478
Denton v Phillpott [1990] NSW Conv R 55-545
Dunnell v Phillips (1982) 2 BTR 9517
Durian (Holdings) Pty Ltd v Cavacourt Pty Ltd (2000) 10 BPR [97830] 18,100
Finlayson v Campbell (Supreme Court of New South Wales, Young J, unreported, 4 September 1997)
Gallagher v Rainbow (1994) 179 CLR 624
Gotobed v Pridmore [1970] 115 Sol Jo 78
Grill v Hockey (1991) 5 BPR 11,421
Guth v Robinson (1977) 1 BPR [97017]
Keefe v Amor [1965] 1 QB 334
Knight v Simmons [1896] 2 Ch 294
McIntyre v Porter [1983] 2 VR 439
Middleton v Arthur [2002] NSWSC 627
Proprietors Strata Plan No 9968 v Proprietors Strata Plan No 11173 [1979] 2 NSWLR 605
R v Chorley (1848) 12 QB 515
Re Henderson's Conveyance [1940] Ch 835
Saggers v Brown (1981) 2 BTR 9329
Swan v Sinclair [1924] 1 Ch 254
Tehidy Medals Ltd v Norman [1971] 2 QB 528
Treweeke v 36 Wolseley Road Pty Ltd (1973) 128 CLR 274
Ward v Ward (1852) 7 Ex 838 [155 ER 1189]
Williams v Usherwood (1983) 45 P & CR 235
Zenere v Leate (1980) 1 BPR [97089]

PARTIES :
Peter Duncansby Long and Joy Ellen Long (P/XD)
Christopher Robin Michie and Lindsay Francis Michie (D1/XC1)
Robert Frederic Purves (D2/XC2)

FILE NUMBER(S): SC 1323/01

COUNSEL: M J Cohen (P)
P B Walsh (D)

SOLICITORS: Peter Cornelius & Partners (P)
Church & Grace (D)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

AUSTIN J

MONDAY 7 APRIL 2003

1323/01 PETER DUNCANSBY LONG & ANOR V CHRISTOPHER ROBIN MICHIE & ANOR

JUDGMENT (revised for typographical errors 7 April 2003)

HIS HONOUR:

The proceedings

1 This is a case about an old system instrument establishing a right of way over properties in East…

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 Long v Michie

Details

AGLC: Long v Michie [2003] NSWSC 233
Case: [2003] NSWSC 233
Decision Date: 7 April 2003

CaseChat Overview and Summary

Long and Michie appeared before the court in a dispute over an easement, specifically a right of way, appurtenant to a church property that was granted in 1856. The dispute arose when the access to the right of way was obstructed by the closure of access, the creation of gardens, the construction of a garage door, and the parking of vehicles. The central legal issues the court needed to resolve were whether the right of way had been abandoned at general law or should be extinguished under section 89(1)(b) of the Conveyancing Act, and whether the right of way should be deemed obsolete under section 89(1)(a) of the Act. Additionally, the court needed to determine whether the continued existence of the right of way impeded the reasonable use of the servient tenements without securing a practical benefit to the owner of the dominant tenement, which could also justify extinguishment under section 89(1)(a).

The court examined the evidence presented to determine if the right of way had been abandoned at general law or should be extinguished under the Conveyancing Act. The court found that the evidence did not support the argument that the right of way had been abandoned at general law. Regarding the extinguishment under section 89(1)(b) of the Act, the court held that the right of way had not been extinguished because the obstructions were not permanent and the right of way could still be used. The court also considered whether the right of way should be deemed obsolete under section 89(1)(a) of the Act. The court concluded that the right of way was not obsolete because it was still being used and was necessary for the access to the church property. Furthermore, the court determined that the continued existence of the right of way did not impede the reasonable use of the servient tenements without securing a practical benefit to the owner of the dominant tenement.

The court ultimately decided that the right of way should not be extinguished. The court found that the evidence did not support the extinguishment of the right of way under either general law or the Conveyancing Act. The court's decision was based on the fact that the right of way was still being used, it was not obsolete, and it did not impede the reasonable use of the servient tenements. The court's final orders were that the right of way should remain in place and that the obstructions should be removed to ensure the continued access to the church property.

Orders