Owners Strata Plan 22724 v Owners Strata Plan 30403 - [2012] NSWSC 1192

Supreme Court

New South Wales

Medium Neutral Citation: Owners Strata Plan 22724 v Owners Strata Plan 30403 [2012] NSWSC 1192
Hearing dates: 29 August 2012
Decision date: 05 October 2012
Jurisdiction: Equity Division
Before: Lindsay J
Decision:
Summons dismissed.

Catchwords: Estoppel - estoppel in pais - equitable estoppel - proprietary estoppel - whether an arrangement between parties was a permanent easement or a car park licence for an indefinite period determinable by either party on reasonable notice - whether defendant gave the plaintiff reasonable notice of its intention to terminate - proprietary estoppel not established
Legislation Cited: Conveyancing Act 1919 (NSW)
Evidence Act 1995 (NSW)
Strata Titles Act 1973
Real Property Act 1900 (NSW)
Uniform Civil Procedure Rules 2005 (NSW), r 35.2
Cases Cited: Ramsden v Dyson (1866) LR 1 HL 129 at 170
Rudi's Enterprises Pty Limited v Jay (1987) 10 NSWLR 568 at 575F-576B
Re Ellenborough Park [1956] 1 Ch 131 at 175, Hill v Tupper (1863) 159 ER 51
Crabb v Arun District Council and Hill v AWJ Moore & Co Pty Limited.
Delaforce v Simpson-Cook (2010) 78 NSWLR 483 Evans v Evans [2011] NSWCA 92
DHJPM Pty Limited v Blackthorn Resources Limited [2011] NSWCA 348
Tadrous v Tadrous [2012] NSWCA 16
Walsh v Walsh [2012] NSWCA 57
Waddell v Waddell [2012] NSWCA 214
Waltons Stores (Interstate) Limited v Maher (1988) 164 CLR 387;
Silovi Pty Limited v Barbaro (1988) 13 NSWLR 466 at 472, Austotel Pty Limited v Franklins Selfservice Pty Limited (1989) 16 NSWLR 582 at 604 and 610; The Commonwealth of Australia v Verwayen (1990) 170 CLR 394 at 444-446; Giumelli v Giumelli (1999) 196 CLR 101.
Plimmer v The Mayor, Councillors and Citizens of the City of Wellington (1884) LR 9 App Cas 699 at 713;
Inwards v Baker [1965] 2 QB 29 at 36 and 38;
Crabb v Arun District Council [1976] Ch 179 at 188-190;
Waltons Stores (Interstate) Limited v Maher at 164 CLR 404 and 428-429;
Hill v AWJ Moore & Co Pty Limited (Needham J, unrep, 31 August 1990) BC 9002063 at 12-13;
Clancy v Salienta Pty Limited (2000) 11 BPR 20425 at [37] and [166];
Hoath v Connect Internet Services Pty Limited [2006] NSWSC 158, 69IPR 62 at [200];
McKeand v Thomas [2006] NSWSC 1028, 12 BPR [98201] at [114]-[130].
Category: Principal judgment
Parties: Owners Strata Plan 22724
Owners Strata Plan 30403
Representation: MT McCulloch SC and
S Fitzpatrick (Plaintiff)
M Hall (Defendant)
Jane Crittenden (Plaintiff)
David Le Page (Defendant)

File Number(s): 2012 / 193592

Judgment

INTRODUCTION

These proceedings concern two adjacent properties at Edgecliff in New South Wales.

The Plaintiff claims an entitlement, said to be equitable in character, to enforce extended car parking rights claimed over land in the ownership of the Defendant.

The Plaintiff has the benefit of a registered easement over the Defendant's land that permits it, or persons authorised by it, to access not more than 15 car spaces on the Defendant's land between 9.00am and 6.00pm, seven days…

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.

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Details

Case: [2012] NSWSC 1192
Decision Date: 05 October 2012

CaseChat Overview and Summary

Owners Strata Plan 22724 commenced proceedings against Owners Strata Plan 30403 seeking to establish a proprietary estoppel over the latter’s land. The dispute arose from an alleged arrangement between the parties which granted Owners Strata Plan 22724 an easement over the land of Owners Strata Plan 30403. Owners Strata Plan 22724 argued that this arrangement was a permanent easement, while Owners Strata Plan 30403 contended that it was a car park licence for an indefinite period which could be terminated by either party on reasonable notice. The Supreme Court of Queensland was tasked with determining the nature of the arrangement and whether Owners Strata Plan 30403 had given Owners Strata Plan 22724 reasonable notice of its intention to terminate the arrangement.

The primary legal issues before the Court were whether the arrangement between the parties constituted a permanent easement or a terminable licence, and whether Owners Strata Plan 30403 had provided Owners Strata Plan 22724 with reasonable notice of its intention to terminate the arrangement. The Court examined the terms of the arrangement, the conduct of the parties, and the circumstances in which the arrangement was made. The Court also considered the principles of estoppel in pais and proprietary estoppel, including whether Owners Strata Plan 30403 had made a representation to Owners Strata Plan 22724 that it would not terminate the arrangement without reasonable notice.

The Court found that the arrangement between the parties was a car park licence for an indefinite period which could be terminated by either party on reasonable notice. The Court held that Owners Strata Plan 30403 had not made a representation to Owners Strata Plan 22724 that it would not terminate the arrangement without reasonable notice, and therefore proprietary estoppel was not established. The Court also found that Owners Strata Plan 30403 had given Owners Strata Plan 22724 reasonable notice of its intention to terminate the arrangement. The Court rejected Owners Strata Plan 22724’s claim for proprietary estoppel and dismissed the proceedings.

Orders