Polaris Properties (WA) Pty Ltd as trustee for the Polaris Trust v Pickworth

The case before the court involved Polaris Properties (WA) Pty Ltd as trustee for the Polaris Trust, who brought an action against Pickworth. The dispute centred on the interpretation and application of an alleged implied statutory easement for utility purposes in a strata scheme. The matter was heard in the Supreme Court of Western Australia.

The legal issues that the court needed to address were whether the doctrine of easement by prescription by lost modern grant applied, and if ancillary (statutory) rights could be granted to an easement by lost modern grant. A further issue was whether relevant facts could be assumed in the context of a stated case procedure. The court had to determine whether the stated case procedure was appropriate given that the matter turned on its own unique facts.

The court found that the doctrine of easement by prescription by lost modern grant could not apply in this context, as it was not possible to assume the relevant facts. The court also held that ancillary rights to an easement by lost modern grant could not be granted. Given that the case depended on its own unique facts, the stated case procedure was deemed inappropriate. Consequently, the application for a preliminary determination of questions of law was dismissed.

The final orders of the court were that the application for a preliminary determination of questions of law was dismissed, with no orders as to costs.