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McKeand v Thomas

McKeand v Thomas

Case [2006] NSWSC 1028 25 October 2006

Intention to Enter Legal Relations

Breach of Warranty of Authority

Property Law

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CITATION: McKeand v Thomas [2006] NSWSC 1028

HEARING DATE(S): 26/7/06-28/7/06 & 28/8/06

JUDGMENT DATE :
25 October 2006

JURISDICTION: Equity

JUDGMENT OF: Campbell J

DECISION: Parties to bring in Short Minutes.

CATCHWORDS: CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - intention to enter legal relations - REAL PROPERTY - easements - when implied easements arise under first rule in Wheeldon v Burrows (1879) 12 Ch D 31 - PRINCIPAL AND AGENT - authority of agent - authority to enter contract distinguished from authority to administer contract - PRINCIPAL AND AGENT - authority of agent - ostensible authority - PRINCIPAL AND AGENT - ratification - need for full knowledge of material circumstances or adoption regardless of material circumstances - PRINCIPAL AND AGENT - ratification - circumstance in which adoption of part of a transaction involves ratifying the whole of it - EASEMENTS - implied incidental rights - LICENCES - implication of terms in - LICENCES - circumstances in which common law regards a licence as irrevocable - ESTOPPEL - equitable estoppel - proprietary estoppel - circumstances when a licence becomes irrevocable - effect on grant of injunction against revocation of licence of availability of remedy in damages against someone other than the licensor - EASEMENTS - creation - under statute - section 88K Conveyancing Act 1919 - requirement that proposed easement "reasonably necessary for the effective use or development" of the applicant's land - PRINCIPAL AND AGENT - breach of warranty of authority

LEGISLATION CITED: Conveyancing Act 1919
Electricity (Consumer Safety) Regulations 2006

CASES CITED: Armstrong v Sheppard & Short Ltd [1959] 2 QB 384
Australian Blue Metal Limited v Hughes (1961) 79 WN (NSW) 498
Australian Blue Metal Ltd v Robert Frank Hughes & Others [1963] AC 74
Bank of Montreal v Dominion Gresham Guarantee and Casualty Company, Limited [1930] AC 659
Brockway v Pando (2000) 22 WAR 405
Campbell v McGrath [2005] NSWSC 496; (2005) 12 BPR 23,073; [2005] ANZ ConvR 435
Canadian Pacific Railway Co v The King [1931] AC 414
Clancy and another v Salienta Pty Ltd and others (2000) 11 BPR 20,425
Crabb v Arun District Council [1976] Ch 179
Crabbtree-Vickers Pty Ltd v Australian Direct Mail Advertising & Addressing Co Pty Ltd (1975) 133 CLR 72
Di Bello & Anor v De Costi Seafoods (Holdings) Pty Ltd [2005] NSWCA 267
Freeman & Lockyer v Buckhurst Park Properties (Mangal) Ltd [1964] 2 QB 480
Hemmes Hermitage Pty Ltd v Abdurahman & Anor (1991) 22 NSWLR 343
Hoath v Connect Internet Services Pty Ltd [2006] NSWSC 158
Inwards v Baker [1965] 2 QB 29
Khattar & Anor v Wiese [2005] NSWSC 1014
Liggins v Inge (1831) 7 Bing 682; 131 ER 263
Maher v Bayview Golf Club Ltd [2004] NSWSC 275; (2004) 12 BPR 22,457
Marsh v Joseph [1897] 1 Ch 213
McGrath & Anor v Campbell & Anor [2006] NSWCA 180
Minister of Health v Bellotti and another [1944] 1 KB 298
Naylor v Canterbury Park Racecourse Co Ltd (1935) 35 SR (NSW)…

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 McKeand v Thomas

Details

AGLC: McKeand v Thomas [2006] NSWSC 1028
Case: [2006] NSWSC 1028
Decision Date: 25 October 2006

CaseChat Overview and Summary

The case of McKeand v Thomas involved the parties' dispute over the creation of an easement and the authority of an agent to enter into such a contract. The case was heard in the Supreme Court of New South Wales. The central issue was whether the easement was validly created and if the agent had the authority to enter into the contract on behalf of the principal.

The court needed to determine whether the easement was properly established under the first rule in Wheeldon v Burrows, whether the agent had actual or ostensible authority to enter into the contract, and whether the principal had ratified the contract. The court also had to consider whether the licence was irrevocable and if equitable estoppel principles applied, as well as whether the statutory requirements for creating an easement were met.

The court found that the easement was not validly created under the first rule in Wheeldon v Burrows, as the necessary conditions were not met. The agent did not have actual authority to enter into the contract, but the court did find ostensible authority existed. The principal had not ratified the contract with full knowledge of all material circumstances. The licence was found to be revocable, and the court did not find the principles of equitable estoppel or proprietary estoppel to be applicable. The statutory requirements for creating an easement under section 88K of the Conveyancing Act 1919 were also not satisfied.

As a result of these findings, the court determined that the easement was not validly created, and the agent did not have the authority to enter into the contract on behalf of the principal. The court ruled in favour of the defendant, Thomas, and dismissed the plaintiff McKeand's claims.

Orders