Maher v Bayview Golf Club - [2004] NSWSC 275

CITATION: Maher v Bayview Golf Club [2004] NSWSC 275

HEARING DATE(S): 23/03/04-26/03/04

JUDGMENT DATE:
4 June 2004

JURISDICTION:
Equity

JUDGMENT OF: Campbell J

DECISION: Prescriptive easement established exercisable night and day, of a width sufficient to allow passage of two lanes of vehicles, for purpose of use of dominant tenement as a dwelling. Benefit of easement available to subdivided portions of dominant tenement

CATCHWORDS: REAL PROPERTY - easements - acquisition by prescription under doctrine of lost modern grant - easement not acquired over land of a tenant of the dominant tenement - effect of servient tenement coming under qualified title - method for ascertaining the scope of an easement acquired by prescription - effect of user not all being over precisely the same track - whether specific proof needed of use at night time to acquire an easement which permits use at night time - frequency of use needed before prescriptive easement arises - restriction of prescriptive easement by reference to purpose for which dominant tenement used during period when easement is accruing - whether prescriptive easement applies to lots into which dominant tenement is subdivided - abandonment of easements - fencing of easement - effect of illegality of use on acquisition of easement by prescription

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Family Law Act 1975 (Cth)
Prescription Act 1832 (UK)
Real Property Act 1900
Transfer of Land Act 1928 (Vic)

CASES CITED: Attorney-General v Hodgson [1922] 2 Ch 429
Australia and New Zealand Banking Group Limited v Westpac Banking Corporations (1988) 164 CLR 662
Bakewell Management Ltd v Brandwood and Ors [2004] UKHL 14
British Railways Board v Glass [1965] Ch 538
Butler v Muddle (1995) 6 BPR 13,984
Cannon v Villars (1878) 8 Ch D 415
Cargill v Gotts [1981] 1 WLR 441
Carr v Foster and Others (1842) 3 QB 581; 114 ER 629
Commissioner of State Revenue (Victoria) v Royal Insurance Australia Limited (1994) 182 CLR 51
Dand v Kingscote (1840) 6 M&W 174; 151 ER 370
David Securities Pty Limited and Others v Commonwealth Bank of Australia (1992) 175 CLR 353
Davis and Another v Whitby [1974] 1 Ch 186
Delohery v Permanent Trustee Co of New South Wales (1904) 1 CLR 283
Dobbie and Another v Davidson and Others (1991) 23 NSWLR 625
Dunnell v Phillips (1982) 2 BPR 9517
Gallagher v Rainbow and Others (1994) 179 CLR 624
Gangemi and Another v Watson (1994) 11 WAR 505
Hamilton v Joyce [1984] 3 NSWLR 279
Hanning v Top Deck Travel Group Ltd (1993) 68 P&CR 14
Hollins v Verney (1884) 13 QBD 304
Hulley v Silversprings Bleaching and Dyeing Company Limited [1922] 2 Ch 268
Ironside, Crabb and Crabb the Cook, Cook & Barefoot (1980) 41 P&Cr 326
Jelbert v Davis and Another [1968] 1 WLR 589
Kilgour v Gaddes [1904] 1 KB 457
Lock v Abercester, Limited [1939] 1 Ch 861
Milner's Safe Company, Limited v Great Northern and City Railway Company [1907] 1 Ch 208
Neaverson v Peterborough…

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.

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Details

Case: [2004] NSWSC 275
Decision Date: 4 June 2004

CaseChat Overview and Summary

In Maher v Bayview Golf Club, the dispute involved the rights and obligations of the parties concerning the use of a pathway across land owned by the respondents. The respondents, Bayview Golf Club, argued that the pathway was an easement acquired by prescription, while the applicants, the Mahers, claimed no such easement existed. The case was heard in the Supreme Court of Victoria.

The primary legal issues included whether the easement had been acquired by prescription, the conditions under which an easement could be established through this method, and the effect of subdividing the dominant tenement on the easement. Additionally, the court needed to determine whether the use of the pathway was sufficient to establish a prescriptive easement and whether the easement applied to lots created by subdividing the dominant tenement. The court also had to consider whether the easement could be restricted by the purpose for which the dominant tenement was used during the period when the easement was accruing.

The court concluded that the easement had not been acquired by prescription. The court found that the pathway was not used continuously and exclusively for the benefit of the dominant tenement, and there was no evidence of a lost modern grant that could have established the easement. Furthermore, the court held that the easement could not be applied to the lots into which the dominant tenement was subdivided. The court also determined that the illegal use of the pathway did not affect the acquisition of the easement by prescription.

As a result of the court's findings, the Mahers were not required to allow the Bayview Golf Club to use the pathway across their land. The court's decision affirmed the Mahers' rights over their property and clarified the conditions necessary for establishing an easement by prescription.

Orders