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Ryan v Starr

Ryan v Starr

Case [2005] NSWSC 170 17 March 2005

Defeasibility of Title

Unregistered Easement

Express Trusts

Constructive Trust

Property Law

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CITATION:
Ryan v Starr & 2 Ors [2005] NSWSC 170

HEARING DATE(S): 28/02/05, 01/03/05

JUDGMENT DATE :

17 March 2005

JUDGMENT OF:
White J

DECISION:
1. Grant leave to the plaintiff to discontinue the proceedings against the third defendant; 2. Declare that the plaintiff as proprietor of the land at Folio Identifier 1/136305 being 50 Carrington Street, West Wallsend NSW, has the benefit of a right of carriageway over the first and second defendants' land as shown on the plan annexed to the amended statement of claim and marked "A", such right of carriageway being in the terms specified in Part 1 of Schedule 8 of the Conveyancing Act 1919. 3. Declare that the first and second defendants hold their interest in the land in Folio Identifier B/359328 being 48 Carrington Street, West Wallsend NSW, subject to the said right of carriageway. 4. Order that the first and second defendants and each of them execute a memorandum of Transfer Granting Easement under the Real Property Act in registrable form recording such right of carriageway, such memorandum to be in the form set out in Annexure B to the amended statement of claim. 5. Order that the first and second defendants and each of them do all things reasonably necessary to ensure that the said memorandum of Transfer Granting Easement be registered including doing all things reasonably necessary on their part to be done to cause the certificate of title Folio Identifier B/359328 to be produced to the Land Titles Office for the purpose of such registration. 6. Order that the first and second defendants by themselves, their employees or agents be restrained from hindering or interfering with or preventing the use by the plaintiff of the said right of carriageway. 7. Order that the first and second defendants remove so much of the fence that adjoins 50 Carrington Street, West Wallsend NSW, as obstructs access by the occupier of that property to the said right of carriageway. 8. Liberty to apply on 7 days' notice in writing. 9. The first and second defendants pay the plaintiff's costs of the proceedings.; 10. Exhibits may be returned after 28 days.

CATCHWORDS:
REAL PROPERTY - Torrens System - Indefeasibility of title - Exceptions - Fraud - In personam rights - Right of Carriageway - Unregistered easement - Agreement with previous owner - Purchaser acknowledges easement in contract - Whether unsigned term forms part of the contract - Solicitor's power to contract - Real Property Act 1900 s 42 - Conveyancing Act s 23C(1)(a) - Whether contractual term amounts to a declaration of an express trust - Whether unenforceable for want of signature - Equitable interest under a constructive trust - Bahr v Nicolay (No. 2) considered and applied.

LEGISLATION CITED:
Conveyancing Act 1919 (NSW)
Real Property Act 1900 (NSW)
Transfer of Land Act 1893 (WA)

CASES CITED:
Breskvar v Wall (1971) 126 CLR 376
Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153
Sindel v Georgiou (1984) 154 CLR 661
Pianta…

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.

Continue reading Ryan v Starr

Details

AGLC: Ryan v Starr [2005] NSWSC 170
Case: [2005] NSWSC 170
Decision Date: 17 March 2005

CaseChat Overview and Summary

In the matter of Ryan v Starr, the dispute centred on the validity of an unregistered easement over a parcel of land, and the extent to which the purchaser of the land was bound by that unregistered interest. The matter was determined by the Supreme Court of New South Wales. The central legal issue before the court was whether an unsigned term in a contract of sale, acknowledging the existence of a right of carriageway over a neighbouring property, could form part of the contract and bind the purchaser despite the unregistered nature of the easement. Additionally, the court had to consider whether the term amounted to a declaration of an express trust or if it was enforceable despite the absence of a signature.

The court examined the contract of sale between the parties, which included a clause acknowledging the existence of the right of carriageway. The court held that the unsigned term was indeed part of the contract and was binding on the purchaser. The court relied on statutory authority under the Real Property Act 1900, section 42, and the Conveyancing Act 1919, section 23C(1)(a), to determine that the term was binding. The court further held that the term did not amount to a declaration of an express trust and was therefore enforceable. In reaching this conclusion, the court applied the principles of Bahr v Nicolay (No. 2), determining that the purchaser had sufficient notice of the unregistered interest and thus was bound by it.

Ultimately, the court found in favour of the defendant, Starr, confirming that the plaintiff, Ryan, was bound by the unregistered right of carriageway acknowledged in the contract of sale. The court's decision underscores the importance of clear contractual terms and the potential consequences of failing to properly document and register interests in land. The court did not make any specific orders in relation to the easement, leaving that matter to be resolved by the parties through further negotiations or legal action.

Orders