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Markos v O R Autor Pty Ltd

Markos v O R Autor Pty Ltd

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Case Copied 25 July 2007 57 min read

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Reported Decision:
(2007) NSW Conv R 56-190

New South Wales

Supreme Court

CITATION: Markos v O R Autor [2007] NSWSC 810

HEARING DATE(S): 23 to 25 May, 15 June, 10 July 2007

JUDGMENT DATE :
25 July 2007

JURISDICTION: Equity

JUDGMENT OF: Austin J

DECISION: Declaration made that right of way does not authorise use for fire egress complying with BCA, and final injunction granted restraining use of site of right of way for fire egress passage from proposed building. Application to extinguish or modify right of way dismissed.

CATCHWORDS: REAL PROPERTY – easements - whether right of way to pass and repass permits use of servient tenement for fire egress in satisfaction of development consent - whether court should grant declaration and injunction restraining use for fire egress passage - whether right of way should be extinguished under s 89(1)(a) in anticipation of completion of building - whether right of way should be modified under s 89(1)(c) - whether court has power under s 89(1)(c) to modify right of way for benefit of dominant owner by permitting use for fire egress passage

LEGISLATION CITED: Conveyancing Act 1919 (NSW), s 89
Building Code of Australia, Section D, paras DO1, DP4, D1.7, D1.10

CASES CITED: Alliance Economic Investment Co Ltd v Berton (1923) 92 LJ KB 750
Attorney-General v Horner (No 2) [1913] 2 Ch 140
Bulstrode v Lambert [1953] 1 WLR 1064
Butler v Muddle (1995) 6 BPR 13984
Castagna v Great Wall Resources Pty Ltd [2005] 12 BPR 23,363
Celsteel Ltd v Alton House Holdings Ltd [1985] 1 WLR 204
Clifford v Hoare (1874) LR 9 CP 362
Denham Pty Ltd v Sidoti (unreported, Waddell CJ in Eq, Supreme Court of New South Wales, 2 August 1989; BC8901890)
Denton v Phillpot (1990) NSW Conv R para 55-543
Durian (Holdings) Pty Ltd v Cavacourt Pty Ltd (2000) 10 BPR 18,099
Ex parte Purcell (1982) 47 LGRA 433
Finlayson v Campbell (1997) 8 BPR 15,703
Flynn v Harte (1913) IR 322
Gallagher v Rainbow (1994) 179 CLR 624
Harris v Flower (1904) 74 LJ Ch 127
Harrison v Duke of Rutland [1893] 1 QB 142
Hoy v ALL ERton [2001] QSC 440
In re Truman, Hanbury Buxton & Co Ltd's Application [1956] 1 QB 261
Jelbert v Davis [1968] 1 WLR 589
Loclot Pty Ltd v Pullen (2003) 56 NSWLR 592
Long v Michie [2003] NSWSC 233
Manly Properties Pty Ltd v Castrisos [1973] 2 NSWLR 420
Mercantile General Life Reassurance Co of Australia Ltd v Permanent Trustee of Australia Ltd (1988) 4 BPR 9534
Natva Developments Pty Ltd v McDonald Bros Pty Ltd (2004) 12 BPR 22,287
Nickerson v Barraclough [1980] Ch 325
Paine & Co Ltd v St Neot's Gas & Coke Co [1939] 3 All ER 812
Perpetual Trustee Company Ltd v Westfield Management Ltd [2006] NSWCA 337
Pettey v Parsons [1914] 2 Ch 653
Posetti v Kosciuszko Thredbo Pty Ltd [2007] ACTSC 4
Prospect County Council v Cross (1990) 21 NSWLR 601
Re Lewis

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: [2007] NSWSC 810
Decision Date: 25 July 2007

CaseChat Overview and Summary

In the case of Markos v O R Autor Pty Ltd, the dispute involved the easement of a right of way over the defendant's land, owned by the plaintiff. The defendant sought to use this right of way for fire egress, a use that was not permitted under the easement. The case was heard by the Supreme Court of New South Wales. The primary issue before the court was whether the defendant's use of the right of way for fire egress constituted a breach of the terms of the easement. Another legal issue was whether the court had the power to modify the easement to permit such use.

The court considered the terms of the easement and found that it did not permit the use of the right of way for fire egress. The court also examined the statutory provisions under which the easement could be modified or extinguished. The court found that while the easement could be extinguished under section 89(1)(a), it could not be modified under section 89(1)(c) to permit the use for fire egress. The court determined that the statutory scheme did not provide for such modification and that to allow it would be to rewrite the terms of the easement. The court held that the defendant's use of the right of way for fire egress was a breach of the easement, and the plaintiff was entitled to a declaration and injunction to restrain such use.

The court further held that the easement should not be extinguished as the building for which the development consent was issued was yet to be completed. The court found that there was no basis to extinguish the easement in anticipation of the completion of the building. The court also found that it did not have the power to modify the easement to permit the use for fire egress. The court granted the plaintiff a declaration that the defendant's use of the right of way for fire egress was a breach of the easement and an injunction to restrain such use.

Orders