Perpetual Trustee Company Limited v Westfield Management Limited

The appeal concerned the construction and effect of an easement granted over land owned by Perpetual Trustee Company Limited (appellant) to Westfield Management Limited (respondent). The dispute centred on whether the easement, described as being "for all purposes," could be used by the respondent to provide access to properties known as Imperial Arcade and Centrepoint, which were also owned by the respondent. The matter was heard in the Court of Appeal of New South Wales.

The primary legal issues before the court were: (1) the proper approach to construing the grant of an easement, particularly the extent to which extrinsic evidence of the parties' intentions and contemplated uses could be admitted; and (2) whether the easement granted over the appellant's property was intended to facilitate access to the respondent's adjacent properties, Imperial Arcade and Centrepoint.

The Court of Appeal held that the construction of an easement must be based on the language of the grant, considered in light of the objective circumstances existing at the time of the grant. While objective circumstances are admissible to assist in construction, subjective intentions or contemplated uses of the parties, not communicated or reflected in the objective circumstances, are not. The court found that the primary judge had erred in admitting and relying on evidence of the subjective intentions of the grantor and communications that did not reflect an agreement between the grantor and grantee regarding the specific use of the easement for access to Imperial Arcade and Centrepoint. The court determined that the objective circumstances, including physical provisions and council policies, supported the existence of a rational objective to achieve access to Imperial Arcade and Centrepoint through the servient tenement, and that the Skygarden development was designed to facilitate this.

The appeal was allowed, the orders of the primary judge were set aside, and the summons was dismissed with costs. The respondent was ordered to pay the appellant's costs of the appeal.