Registrar-General of New South Wales v JEA Holdings (Aust) Pty Ltd

The Registrar-General of New South Wales appealed to the Court of Appeal of New South Wales against a decision concerning the validity of an easement. The dispute involved JEA Holdings (Aust) Pty Ltd, the registered proprietor of land burdened by a purported easement, and Awar, the proprietor of the dominant tenement. The core issue was whether a right to jointly use a car park constituted a valid easement capable of being registered under the Torrens system, and whether it was an "omitted" easement for the purposes of an exception to indefeasibility of title.

The Court of Appeal was required to determine two primary legal questions. Firstly, whether the right to jointly use a car park, as described in the relevant transfer, was capable of subsisting as an easement, considering whether it unduly interfered with the proprietary rights of the servient tenement holder. Secondly, the Court had to consider whether, if the easement was validly created, it qualified as an "omitted" easement under section 42(1)(a) of the *Real Property Act 1900* (NSW), notwithstanding that it had never been recorded on the certificate of title for the servient tenement.

The Court of Appeal, comprising Bathurst CJ, Beazley P, and Basten JA, allowed the appeal. Their Honours reasoned that the right to use the car park, even if it involved a degree of shared use, did not amount to a dispossession of the servient owner's proprietary rights to such an extent as to invalidate the easement. They applied established principles regarding the characteristics of an easement, including the requirement that it accommodate the dominant tenement and not be so extensive as to amount to joint occupation or beneficial enjoyment of the servient land. The Court further held that the easement was indeed an "omitted" easement within the meaning of the Act, as it had been validly created but had not been recorded on the servient tenement's title.

Consequently, the Court of Appeal set aside the orders of the court below. It declared that the land was burdened by the easement as described in the Memorandum of Transfer, ordered the Registrar-General to register the easement, and ordered JEA Holdings to pay the costs of the appeal and the court below.