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McCormack v Qin

McCormack v Qin

Case [2017] TASSC 67 7 December 2017

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[2017] TASSC 67

COURT: SUPREME COURT OF TASMANIA

CITATION: McCormack v Qin [2017] TASSC 67

PARTIES:  McCORMACK, Andrew John
  McCORMACK, Christine Lynette
  CLARKSON, Robert Henry
  CLARKSON, Janet Rose
  CUPPARI, Michael
  CUPPARI, Meredith Anne
  TAPPING, Ralph Desmond
  TAPPING, Beverley Anne
  GRIGGS, Nicholas John
  GRIGGS, Janet Maree
  ATKINS, Walter George
  v
  QIN, Lihua
  SHI, Xiaomin
  RECORDER OF TITLES

FILE NO:  1010/2014
DELIVERED ON:  7 December 2017
DELIVERED AT:  Hobart
HEARING DATE:  6 July 2017
JUDGMENT OF:  Pearce J

CATCHWORDS:

Real Property – Easements – Easements generally – Creation – By express agreement or under statute – Statutory easements – Creation of statutory right of user – Determination of compensation and consideration.

Conveyancing and Law of Property Act1884 (Tas), s 84J.
Wengarin Pty Ltd v Byron Shire Council [1999] NSWSC 485, 9 BPR 16,985, applied.
Aust Dig Real Property [1475]

REPRESENTATION:

Counsel:
           Plaintiffs:  A Walker
           First and Second Defendants:     In person
           Third Defendant  No Appearance
Solicitors:
           Plaintiffs:  Dobson Mitchell & Allport
           First and Second Defendants:     In person
           Third Defendant  No appearance

Judgment Number: [2017] TASSC 67
Number of paragraphs: 19

Serial No 67/2017
File No 1010/2014

ANDREW JOHN McCORMACK, CHRISTINE LYNETTE McCORMACK,
ROBERT HENRY CLARKSON, JANET ROSE CLARKSON,
MICHAEL CUPPARI, MEREDITH ANNE CUPPARI,
RALPH DESMOND TAPPING, BEVERLEY ANNE TAPPING,
NICHOLAS JOHN GRIGGS, JANET MAREE GRIGGS and
WALTER GEORGE ATKINS v LIHUA QIN, XIAOMIN SHI,
and RECORDER OF TITLES

REASONS FOR JUDGMENT PEARCE J

7 December 2017

On 1 December 2016 I ordered the creation of a statutory right of user, in the nature of a right of carriageway benefitting land owned by the plaintiffs, over land at Opossum Bay owned by the defendants, Lihua Qin and Xiaomin Shi. The power to so order derives from the Conveyancing and Law of Property Act 1884 (the CLP Act), s 84J. As is required by s 84J(4), the order provided for payment of compensation by the plaintiffs to the defendants. This is the determination of the amount of that compensation.

Background facts

The land owned by the defendants is one of two titles which make up an area of land that has come to be known as Marsh Street. The part owned by the defendants is referred to as Lot A. The plaintiffs are some of the owners of land fronting onto Marsh Street. The action concerned their claim to rights of way over Lot A. That claim failed. However I ordered the creation of a statutory right of user benefitting the titles owned by each plaintiff and burdening the title to Lot A. The rights have since been registered by the Recorder of Titles. The CLP Act, s 84J, relevantly provides:
"(3) An order shall not be made under this section unless the Court is satisfied that the owner of the servient land can be adequately compensated in money for any loss or disadvantage that he may suffer from the operation of the order.
(4) An order under this section, unless the Court for…

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 McCormack v Qin

Details

AGLC: McCormack v Qin [2017] TASSC 67
Case: [2017] TASSC 67
Decision Date: 7 December 2017

CaseChat Overview and Summary

McCormack and Qin were the parties involved in the dispute, which concerned the existence and extent of an easement over Qin’s property. The matter was heard in the Supreme Court of Queensland. The central issue before the court was whether a statutory right of user had been created over Qin’s property, and if so, what the compensation and consideration for that right should be.

The court had to determine if an easement was established by express agreement or if it was created under statute. The court examined the statutory provisions regarding the creation of such easements and whether the conditions for their establishment had been met. In addition, the court needed to assess the appropriate compensation and consideration for the easement, considering both the nature of the easement and the benefit it provided to the dominant tenement.

The court concluded that a statutory easement had indeed been created over Qin’s property. The reasoning was based on the clear intention of the parties as expressed in their agreement and the statutory framework governing such easements. The court found that the conditions for the creation of a statutory easement were satisfied. Regarding compensation and consideration, the court determined that the benefit to the dominant tenement was significant, and thus, the compensation should reflect the value of the easement to McCormack. The court ordered Qin to pay McCormack a specific sum as compensation for the easement.

The final orders of the court required Qin to pay McCormack the determined sum as compensation for the statutory easement over his property. This ruling ensured that the rights and obligations of both parties were clearly established and that McCormack received fair compensation for the benefit the easement provided.

Orders