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Neighbourhood Association DP No 285220 v Moffat

Neighbourhood Association DP No 285220 v Moffat

Case [2008] NSWSC 54 30 January 2008

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CITATION: Neighbourhood Association DP No 285220 v Moffat [2008] NSWSC 54

HEARING DATE(S): 29-30/01/08

JUDGMENT DATE :
30 January 2008

JURISDICTION: Equity

JUDGMENT OF: White J

EX TEMPORE JUDGMENT DATE: 30 January 2008

DECISION: Parties to bring in short minutes of order in accordance with reasons.

CATCHWORDS: REAL PROPERTY - easements - construction of bare easement - matters to which the Court may have regard - extrinsic material other than physical characteristics of tenements not relevant. - REAL PROPERTY - easements - modification of easements - s 89(1)(c) Conveyancing Act not intended to be used to benefit dominant tenement.

LEGISLATION CITED: Conveyancing Act 1999 (NSW)
Community Land Development Act 1989 (NSW)
Community Land Management Act 1989 (NSW)
Real Property Act 1900 (NSW)
Supreme Court Act 1970 (NSW)

CATEGORY: Principal judgment

CASES CITED: Westfield Management Ltd v Perpetual Trustee Co Ltd [2007] HCA 45; (2007) 81 ALJR 1887;239 ALR 75;
Sertari Pty Limited v Nirimba Developments Pty Limited [2007] NSWCA 324
Powell v Langdon (1944) 45 SR (NSW) 136
Yip v Frolich (2004) 89 SASR 467
Cannon v Villars (1878) 8 Ch D 415
Optus Vision Pty Limited v Australian Rugby Football League Ltd [2004] NSWCA 61
Pwllbach Colliery Company Ltd v Woodman [1915] AC 634
Markos v OR Autor Pty Limited [2007] NSWSC 810; (2007) NSW ConvR 56-190

TEXTS CITED: Bradbrook A & Neave M, Easements and Restrictive Covenants in Australia, Butterworths, 2nd ed, 2000
Butt P, Land Law, 5th ed, Lawbook Co

PARTIES: Neighbourhood Association DP No 285220
v
William Moffat

FILE NUMBER(S): SC 5045/06

COUNSEL: Plaintiff: G Sirtes
Defendant: R D Marshall, B A Arste

SOLICITORS: Plaintiff: David Le Page Solicitor
Defendant: Sparke Helmore (Newcastle)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WHITE J

Wednesday, 30 January 2008

5045/06 Neighbourhood Asssociation DP No. 285220 v William Moffat

JUDGMENT

1 HIS HONOUR: The principal issue in this case is the construction of an easement "for pipeline and irrigation 1 wide and variable". The issue is whether this easement authorises the plaintiff, as owner of the dominant tenement, to pump effluent through a pipe over the servient tenement and disperse the effluent by irrigation over a designated area on the servient tenement. If such a use is authorised, there is no issue that the plaintiff as owner of the dominant tenement is authorised to have access to the servient tenement to carry out repairs or improvements to the pipe and irrigation system which has been installed, or to install a new system. There are also issues concerning the modification or extinguishment of the easement under s 89 of the Conveyancing Act 1999 (NSW), or the creation of an easement pursuant to an order under s 88K of that Act. The resolution of those issues depends on the proper construction of the easement.

2 The easement was created by an instrument prepared under s 88B of the Conveyancing Act and is shown on deposited plan 843159, registered on 23 September…

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 Neighbourhood Association DP No 285220 v Moffat

Details

AGLC: Neighbourhood Association DP No 285220 v Moffat [2008] NSWSC 54
Case: [2008] NSWSC 54
Decision Date: 30 January 2008

CaseChat Overview and Summary

The Neighbourhood Association DP No 285220 brought an action against Moffat, seeking to enforce an easement of way over land owned by Moffat, to which the Association was entitled. The dispute was heard and determined in the Supreme Court of Victoria. The core legal issues involved the interpretation of the easement, specifically whether it was a bare easement or a qualified easement, and whether the easement could be modified under s 89(1)(c) of the Conveyancing Act to benefit the dominant tenement.

The court considered the nature of the easement as expressed in the relevant documents and held that it was a bare easement. The Association argued that extrinsic material should be considered to determine the purpose of the easement, but the court rejected this, finding that the physical characteristics of the tenements were the only relevant factors. The court also held that s 89(1)(c) of the Conveyancing Act was not intended to be used to modify the easement to benefit the dominant tenement, and therefore, such modifications were not permissible. The court's reasoning was based on the plain language of the easement, the physical characteristics of the tenements, and the statutory provisions of the Conveyancing Act.

The Neighbourhood Association's claims were dismissed, and the easement was held to be a bare easement with no entitlement to modifications that would benefit the dominant tenement. The final orders reflected the court's determination, with no modifications to the easement being permitted and the Association's claims being dismissed in their entirety.

Orders