Re Wenck and Wenck - [2004] QSC 15

SUPREME COURT OF QUEENSLAND

CITATION:

Wenck and Wenck, Re [2004] QSC 015

PARTIES:

Garth Raymond Noel Wenck and Judith Mary Wenck

FILE NO/S:

SC 11919 of 2003

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court Brisbane

DELIVERED ON:

13 February 2004

DELIVERED AT:

Brisbane

HEARING DATE:

11 February 2004

JUDGE:

White J

ORDER:

Easement A on RP 55365 over Lots 19 and 20 of RP 811402 registered pursuant to Transfer Dealing No A 383126 in the Office of the Registrar of Titles on 10 November 1938 be extinguished.

CATCHWORDS:

REAL PROPERTY – EASEMENTS – EXTINGUISHMENT - Comparison of user at the time of grant of easement with existing user – Potential for development of land benefited

Property Law Act 1974 s 181

Re Eddowes [1991] 2 Qd R 381, considered
Eucalypt Group Pty Ltd v Robin [2003] 2 Qd R 488, referred to

Ex parte Melvin [1980] Qd R 391, followed
Hunton (C) Ltd v Swire [1969] NZLR 232, referred to
Re Miscamble’s Application [1966] VR 596, referred to
Re Rollwell Australia Pty Ltd No 34 of 1998 (Rockhampton), 1 October 1998, referred to
Treweeke v 36 Wolsley Road Pty Ltd (1973) 128 CLR 274, referred to
In re Truman, Hanbury, Buxton & Co Lts’s Application [1956] 1 QB 261, referred to

COUNSEL:

T W Quinn for the applicant

SOLICITORS:

Robert Bax & Associates for the applicant

The applicants are the registered proprietors as joint tenants of an estate in fee simple in Lots 19 and 20 on RP 811402 situated at Mt Nebo Road and Alutha Road, The Gap. They seek an order pursuant to s 181 of the Property Law Act 1974 (“the Act”) that Easement A on RP 55365 over Lots 19 and 20 registered in the Office of the Registrar of Titles on 10 November 1938 with dealing No A383126 be extinguished. The easement comprises certain land between a cul-de-sac at the western end of Alutha Road and Mt Nebo Road. The area of the easement sought to be extinguished relates only to that part of the easement which traverses Lots 19 and 20. It also traverses parts of other adjacent lots but to a much less extent. Lots 19 and 20 together comprise just under 5,000 sq m.

On 8 January 2004 Mr Justice Muir made orders about notice pursuant to s 181(7) of the Act. This was done by a notice in the Public Notices section of the Courier Mail and by posting that notice on a sign facing the roadway near the frontage of Lot 19 to Alutha Road and was to remain there for a period of 21 days. Those orders have been complied with and no interested party has appeared on this application. That form of notice was permitted because of the in excess of 260 potential landowners and residents who might have been interested in this application.

The Brisbane City Council (“the Council”) was notified of the circumstances of the application and the material in support of…

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: [2004] QSC 15
Decision Date: 13 February 2004

CaseChat Overview and Summary

The case of Re Wenck and Wenck involved a dispute concerning the extinguishment of an easement over two lots of land. The easement, registered in 1938, allowed the holder to cross over two parcels of land to access another property. The respondents, the current owners of the land over which the easement was registered, sought to have the easement extinguished on the basis that it was no longer necessary and was causing inconvenience and damage. The primary issue was whether the easement had been extinguished by virtue of the change in circumstances since the time of its creation.

The court considered the established legal principles governing the extinguishment of easements, which include the comparison of the use of the easement at the time of its grant with its current use, and the potential for development of the land that benefits from the easement. The court found that the nature and extent of the easement had changed significantly since its creation and that the current use of the easement was not consistent with the original purpose. Furthermore, the potential for development of the land that benefits from the easement was limited, which supported the extinguishment of the easement. The court determined that the circumstances had changed to such an extent that the easement was no longer necessary for the benefit of the dominant tenement.

As a result, the easement was extinguished, and the court ordered that it be removed from the register of titles. This decision highlights the importance of considering the original purpose of an easement and the changes in circumstances over time when determining whether an easement should be extinguished. The outcome of this case may have implications for future disputes concerning the extinguishment of easements in Australia.

Orders

Orders of the court

Easement A on RP 55365 over Lots 19 and 20 of RP 811402 registered pursuant to Transfer Dealing No A 383126 in the Office of the Registrar of Titles on 10 November 1938 be extinguished.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Wenck and Wenck, Re [2004] QSC 015
PARTIES:	Garth Raymond Noel Wenck and Judith Mary Wenck
FILE NO/S:	SC 11919 of 2003
DIVISION:	Trial
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court Brisbane
DELIVERED ON:	13 February 2004
DELIVERED AT:	Brisbane
HEARING DATE:	11 February 2004
JUDGE:	White J
ORDER:	Easement A on RP 55365 over Lots 19 and 20 of RP 811402 registered pursuant to Transfer Dealing No A 383126 in the Office of the Registrar of Titles on 10 November 1938 be extinguished.
CATCHWORDS:	REAL PROPERTY – EASEMENTS – EXTINGUISHMENT - Comparison of user at the time of grant of easement with existing user – Potential for development of land benefited Property Law Act 1974 s 181 Re Eddowes [1991] 2 Qd R 381, considered Eucalypt Group Pty Ltd v Robin [2003] 2 Qd R 488, referred to Ex parte Melvin [1980] Qd R 391, followed Hunton (C) Ltd v Swire [1969] NZLR 232, referred to Re Miscamble’s Application [1966] VR 596, referred to Re Rollwell Australia Pty Ltd No 34 of 1998 (Rockhampton), 1 October 1998, referred to Treweeke v 36 Wolsley Road Pty Ltd (1973) 128 CLR 274, referred to In re Truman, Hanbury, Buxton & Co Lts’s Application [1956] 1 QB 261, referred to
COUNSEL:	T W Quinn for the applicant
SOLICITORS:	Robert Bax & Associates for the applicant