Nirimba Developments Pty Limited v Sertari Pty Limited - [2007] NSWSC 252

CITATION: Nirimba Developments Pty Limited v Sertari Pty Limited [2007] NSWSC 252

HEARING DATE(S): 14 and 15 February 2007

JUDGMENT DATE :
22 March 2007

JURISDICTION: Equity Division

JUDGMENT OF: Windeyer J at 1

DECISION: Order that defendant consent to the lodgement of a development application for the use of a right of way.

CATCHWORDS: EASEMENTS – Right of way – Right of carriageway in favour of whole or any part of dominant tenement for “any purpose” – Subdivision of dominant land – Large residential development proposed on one lot of subdivided dominant tenement – Consent of owner of servient tenement required for lodgement of application in Land and Environment Court for use of right of carriageway for proposed development – Consent refused – Whether mandatory order for consent should be made – Construction of terms of grant of easement – Evidence admissible on construction – Whether question of excessive use special consideration or one going to construction

LEGISLATION CITED: Conveyancing Act 1919
Environment Planning and Assessment Act 1979
EPA Regulation 2000

CASES CITED: Jelbert v Davis [1968] 1 WLR 589
Kirkjian v Towers (unreported NSWSC Waddell J 7 March 1975 and Waddell CJ in Eq 6 July 1987)
Perpetual Trustee Co Limited v Westfield Management Limited [2006] NSWCA 337
South Metropolitan Cemetery Company v Eden (1855) 16 CB 42
Todrick v Western National Omnibus Co [1934] Ch 190

PARTIES: Nirimba Developments Pty Limited (Plaintiff)
Sertari Pty Limited (Defendant)

FILE NUMBER(S): SC 5386/06

COUNSEL: Mr S Kalfas SC with him Mr S Flanigan (Plaintiff)
Mr T S Hale SC with him Mr M A Izzo (Defendant)

SOLICITORS: Deacons (Plaintiff)
Holding Redlich (Defendant)

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IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WINDEYER J

THURSDAY 22 MARCH 2007.

5386/06 NIRIMBA DEVELOPMENTS PTY LIMITED V SERTARI PTY LIMITED

JUDGMENT

Question for decision

1 Whether a registered proprietor of part of land which was the original dominant tenement of an easement as set out below is entitled to enforce it in accordance with its words or whether the true construction of the easement precludes that enforcement.

Facts

2 The plaintiff is the owner of Lot 1 in DP 853847 being land in Folio Identifier 1/853847 and known as 9 Nirimba Drive, Quakers Hill. The defendant is the registered proprietor of Lot 1 in DP 806691 known as 7 Nirimba Drive, Quakers Hill. The defendant’s property is the servient tenement under an easement created by operation of s88B of the Conveyancing Act 1919 upon registration of DP806691.

3 The easement as set out in the s88B instrument is noted as a “Right of Carriageway 7 wide” benefiting Lot 4 DP 216298 and burdening Lots 1 and 2 in DP 806691. The body with power to release vary or modify the easement is the Council of the City of Blacktown. The terms of the easement as fully set out in paragraph 1 of Schedule 2 to the instrument are as follows:

Terms of Easement firstly refered to in abovementioned plan

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 Nirimba Developments Pty Limited v Sertari Pty Limited

Details

AGLC: Nirimba Developments Pty Limited v Sertari Pty Limited [2007] NSWSC 252
Case: [2007] NSWSC 252
Decision Date: 22 March 2007

CaseChat Overview and Summary

Nirimba Developments Pty Limited brought an action against Sertari Pty Limited in the Supreme Court of New South Wales, seeking a declaration that it was entitled to lodge an application in the Land and Environment Court for the use of a right of carriageway over land owned by Sertari for the purposes of a large residential development. The dominant tenement was subdivided into two lots, with the proposed development occurring on one lot. Sertari refused to consent to the lodgement of the application, leading to this action. The central legal issue was whether the plaintiff was entitled to use the right of carriageway for the proposed development and, if so, whether the court should order Sertari to consent to the lodgement of the application. The court had to consider the construction of the terms of the grant of the easement, the admissibility of evidence on construction, and whether the question of excessive use was a special consideration or one going to construction.

The court found that the terms of the grant of the easement allowed for the use of the right of carriageway for "any purpose" and that this included the proposed development. The court rejected the argument that the question of excessive use was a special consideration and held that it was a matter going to the construction of the easement. The court also held that evidence was admissible on the construction of the terms of the grant of the easement. The court found that the proposed development did not constitute an excessive use of the right of carriageway and ordered Sertari to consent to the lodgement of the application in the Land and Environment Court.

Orders