Reported Decision: 68 NSWLR 229
(2006) NSW ConvR 56-159
Court of Appeal
CITATION: McGrath & Anor v Campbell & Anor [2006] NSWCA 180 HEARING DATE(S): 15/6/06
JUDGMENT DATE:
7 July 2006JUDGMENT OF: Giles JA at 1; Hodgson JA at 2; Tobias JA at 6 DECISION: a) Appeal allowed; b) Set aside the declaration and orders made by Barrett J on 29 June 2005; c) The proceedings be dismissed; d) The respondents pay the appellants’ costs of the proceedings at first instance and of the appeal but to have with respect to the latter a certificate under the Suitor’s Fund Act 1951, if otherwise qualified CATCHWORDS: EQUITY – equitable estates and interests – easement – implied easement created by Wheeldon v Burrows extended by Aldridge v Wright – effect of transfer of title under the Real Property Act 1900 – simultaneous transfers of title from a single vendor to separate purchasers – whether easement enforceable against successors in title – whether personal equity or right enforceable in personam exists between purchasers – REAL PROPERTY – easements – Torrens Title land – equitable easement – simultaneous transfer of tenements to different parties – whether equitable Wheeldon v Burrows easement can survive transfer to vendor’s successor in title – effect of registration under Real Property Act 1900 LEGISLATION CITED: Conveyancing Act 1919
Land Transfer Act 1952 (NZ)
Real Property Act 1900, s 42
Suitor's Fund Act 1951CASES CITED: Aldridge v Wright [1929] 2 KB 117
Australian Hi-Fi Publications Pty Ltd v Gehl [1979] 2 NSWLR 618
Bahr v Nicolay (No 2) (1988) 164 CLR 604
Breskvar v Wall (1971) 126 CLR 376
British Leyland Motor Corporation Ltd v Armstrong Patents Co Ltd [1986] AC 577
Canon Kabushiki Kaisha v Green Cartridge Co (Hong Kong) Ltd [1997] AC 728
Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337
Crook v Hill LR 6 Ch 311
Dobbie v Davidson (1991) 23 NSWLR 625
Douglas v Baynes (1908) AC 477
Frazer v Walker [1967] 1 AC 569
Grgic v Australian & New Zealand Banking Group Ltd (1994) 33 NSWLR 202
Hamlyn v. Wood [1891] 2 QB 488
Hansford v Jago [1921] 1 Ch 322
Horsfall v Braye (1908) 7 CLR 629
Howitt v Fitzgerald (1898) 24 VLR 287
Kebewar Pty Ltd v Harkin (1987) 9 NSWLR 738
Maralinga Pty Ltd v Major Enterprises Pty Ltd (1973) 128 CLR 336
Mayer v Coe [1968] 2 NSWR 747
Mercantile Mutual Life Insurance Co Ltd v Gosper (1991) 25 NSWLR 32
Nelson v Walker (1910) 10 CLR 560
Pwllbach Colliery Co v Woodman [1915] AC 634
Sovmots Investments Ltd v Secretary of State for the Environment [1979] AC 144
Story v Advance Bank Australia Ltd (1993) 31 NSWLR 722
Tarrant v Zandstra (1973) 1 BPR 9381
Wheeldon v Burrows [1879] 12 Ch D 31
Vassos v State Bank of South Australia [1992] V Conv R 54- 443
Wilcox v Richardson (1997) 43 NSWLR 4
Wilkinson v Adam 1 V&B 422
Williams…
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Details
- AGLC
- McGrath v Campbell [2006] NSWCA 180
- Case
- [2006] NSWCA 180
- Decision Date
CaseChat Overview and Summary
McGrath v Campbell concerned a dispute between adjoining landowners, the appellants (McGraths) and the respondents (Campbells), in the New South Wales Court of Appeal. The core of the disagreement lay in the enforceability of an alleged equitable easement over the appellants' land, which the respondents claimed had been created by the doctrine of *Wheeldon v Burrows* and extended by the principles in *Aldridge v Wright*. The respondents, as purchasers of one parcel of land, asserted a right of way over the appellants' adjoining land, which had been transferred simultaneously from a common vendor.
The primary legal issues before the Court of Appeal were whether an equitable easement, impliedly created under the doctrine of *Wheeldon v Burrows*, could survive the simultaneous transfer of title from a single vendor to separate purchasers, and crucially, whether such an easement was enforceable against a successor in title under the *Real Property Act 1900* (NSW). The court also considered whether a personal equity or a right enforceable *in personam* existed between the purchasers in this context, particularly in light of the Torrens system of land registration.
The Court of Appeal allowed the appeal, setting aside the declaration and orders made by the primary judge. The court reasoned that the doctrine of *Wheeldon v Burrows*, as applied in *Aldridge v Wright*, did not operate to create an equitable easement that could be enforced against a successor in title under the Torrens system when title was transferred simultaneously to separate purchasers. The court held that registration under the *Real Property Act 1900* was paramount, and in the absence of registration or an express grant, the alleged equitable easement was not enforceable against the appellants as registered proprietors. Consequently, the proceedings were dismissed.
The primary legal issues before the Court of Appeal were whether an equitable easement, impliedly created under the doctrine of *Wheeldon v Burrows*, could survive the simultaneous transfer of title from a single vendor to separate purchasers, and crucially, whether such an easement was enforceable against a successor in title under the *Real Property Act 1900* (NSW). The court also considered whether a personal equity or a right enforceable *in personam* existed between the purchasers in this context, particularly in light of the Torrens system of land registration.
The Court of Appeal allowed the appeal, setting aside the declaration and orders made by the primary judge. The court reasoned that the doctrine of *Wheeldon v Burrows*, as applied in *Aldridge v Wright*, did not operate to create an equitable easement that could be enforced against a successor in title under the Torrens system when title was transferred simultaneously to separate purchasers. The court held that registration under the *Real Property Act 1900* was paramount, and in the absence of registration or an express grant, the alleged equitable easement was not enforceable against the appellants as registered proprietors. Consequently, the proceedings were dismissed.
Orders
Orders of the court
a) Appeal allowed; b) Set aside the declaration and orders made by Barrett J on 29 June 2005; c) The proceedings be dismissed; d) The respondents pay the appellants' costs of the proceedings at first instance and of the appeal but to have with respect to the latter a certificate under the Suitor's Fund Act 1951, if otherwise qualified
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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