Re Rosedale Farm (NSW) Pty Ltd - [2010] NSWSC 1321

CITATION: Rosedale Farm (NSW) Pty Limited [2010] NSWSC 1321

HEARING DATE(S): 20/08/09, 28/08/09, 5/11/09, 7/12/09, 8/02/10

JUDGMENT DATE :
22 November 2010

JUDGMENT OF: Slattery J at 1

DECISION: See paragraph 93 of judgment.

CATCHWORDS: REAL PROPERTY - Torrens title - easement - application to extinguish - Conveyancing Act 1919, s89 - right of way created over private land in 1929 to give coastal community an access to an old public road - new public road completed in 1975 providing direct access between neighbourhood and the highway system - new formed public roadway covers a section of the right of way - no user of right of way since before 1975 - current user impossible - no appearance to oppose application - circumstances warranting extinguishment under Conveyancing Act, s89(1)(a),(b) and (c) discussed and found established - suitable case for exercise of discretion to extinguish - HELD - easement extinguished.

LEGISLATION CITED: Conveyancing Act 1919, s 89
Real Property Act 1900

CATEGORY: Principal judgment

CASES CITED: Armishaw v Denby Horton (NZ) Ltd [1984] 1 NZLR 44
Ashoil Holdings Pty Limited v Fassoulas & Ors (2005) 12 BPR 23,525
Castagna v Great Wall Resources Pty Ltd (2005) 12 BPR 23,363
Cavacourt Pty Ltd v Durian (Holdings) Pty Ltd (1998) 9 BPR 16,833
Chiu v Healey (2003) 11 BPR 21,241; (2003) NSWSC 857
Durian (Holdings) Pty Ltd v Cavacourt Pty Ltd [2000] 10 BPR 18,099
Frasers Lorne Pty Ltd v Joyce Goldsworthy Burke & Ors (2008) 14 BPR 26,131
Re Ghey & Galton’s Application [1957] 2 QB 650
Grill v Hockey (1991) 5 BPR 11,421
Heaton v Loblay (1960) SR (NSW) 332
In re Truman, Hanbury, Buxton & Company Ltd's Application [1956] 1 QB 261
Markos v OR Autor Pty Ltd [2007] NSWSC 810
Pieper v Edwards (1982) NSW ConvR 56-060
Proprietors Strata Plan No 9,968 v Proprietors Strata Plan No 11,173 [1979] 2 NSWLR 605
Re Markin [1966] VR 494
Re Mason and the Conveyancing Act (1960) 78 WN (NSW) 925
Re Roseblade; Re Foenander [1964 –5] NSWR 2044
Swan v Sinclair [1925] AC 227
Tomara Holdings Pty Ltd v Pongrass [2002] NSWSC 332
Treweeke v 36 Wolseley Road Pty Ltd (1973) 128 CLR 274
Tujilo v Watts (2005) 12 BPR 23, 257
Webster v Bradac (1993) 5 BPR 12,032
Williams v Usherwood (1981) 45 P & Cr 235

TEXTS CITED: Bradbrook & Neave “Easements and Restrictive Covenants In Australia” Butterworths 2nd Ed, 2000 at [19.27]

PARTIES: Plaintiff- Rosedale Farm (NSW) Pty Limited

FILE NUMBER(S): SC 2009/288103

COUNSEL: Plaintiff- M.J.Heath

SOLICITORS: Plaintiff- David Francis Hawdon, BHM Lawyers

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

SLATTERY J

MONDAY, 22 NOVEMBER 2010

2126/09 RE: THE APPLICATON OF ROSEDALE FARM (NSW) PTY LTD

JUDGMENT

1 HIS HONOUR: The village of Rosedale is a coastal hamlet in the Eurobodalla Shire south of Sydney. Rosedale stands on either side of a tidal waterway known as Saltwater Creek that divides the village into its two parts,…

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: [2010] NSWSC 1321
Decision Date: 22 November 2010

CaseChat Overview and Summary

In the matter of Re Rosedale Farm (NSW) Pty Ltd, the dispute centred around the extinguishment of a right of way created in 1929 over private land to provide a coastal community with access to an old public road. The application was brought before the court to determine if the easement should be extinguished given that a new public road completed in 1975 provided direct access between the neighbourhood and the highway system. The new road covered a section of the right of way, and there had been no use of the right of way since before 1975. Additionally, the current user of the right of way was deemed impossible. The absence of any party appearing to oppose the application further complicated the proceedings.

The court was tasked with determining whether the circumstances warranted extinguishment of the easement under section 89(1)(a), (b), and (c) of the Conveyancing Act 1919. The primary legal issues involved interpreting the statutory provisions and assessing whether the conditions for extinguishment were met. Given the absence of opposition and the impracticality of the current user, the court had to decide if the extinguishment of the easement was justified.

The court thoroughly examined the statutory conditions for extinguishment and found that they were indeed satisfied. The right of way had not been used since before the completion of the new public road, and it was impossible to use the easement in its current form. Additionally, the new road provided a direct and practical alternative access route. The court concluded that the circumstances warranted extinguishment under section 89(1)(a), (b), and (c) of the Conveyancing Act 1919, and it was a suitable case for exercising the discretion to extinguish the easement. As a result, the easement was extinguished by the court.

The final order of the court was that the easement created in 1929 over the private land was extinguished. This decision was based on the established statutory conditions and the impracticality of continuing the easement. The court's ruling effectively removed the burden of the easement on the private land, facilitating its use and development in accordance with modern requirements.

Orders