Starr v George - [2019] NSWSC 60

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Starr v George [2019] NSWSC 60
Hearing dates: 7 February 2019
Date of orders: 07 February 2019
Decision date: 07 February 2019
Jurisdiction: Equity - Real Property List
Before: Henry J
Decision:
See paras [12]-[13]

Catchwords: EASEMENTS – where plaintiff seeks easement by express grant or prescription – declaration by consent
Legislation Cited: Conveyancing Act 1919 (NSW)
Real Property Act 1900 (NSW)
Cases Cited: Bokhari v Bokhari [2014] NSWSC 1474
Fernance v Simpson (2003) 11 BPR 20,955; [2003] NSWSC 121
George Zoltan Ajkay v Hickey & Co Pty Limited [2011] NSWSC 822
HOOSH Inc (Haberfield out of school hours) v State of New South Wales [2017] NSWSC 379
Category: Principal judgment
Parties: Robert John Starr (First Plaintiff)
Valerie Mary Starr (Second Plaintiff)
Robert Cyril George (First Defendant)
Annette Louise George (Second Defendant)
Department of Finance Services and Innovation trading as Office of the Registrar General (Third Defendant)
Representation:
Counsel:
I Davidson SC w K Tang (Plaintiffs)
Solicitors:
Bestic Law (Plaintiffs)
McDonald Johnson Lawyers (First and Second Defendants)
Office of the Registrar General (Third Defendant)

File Number(s): 2018/00315410

Ex tempore jUDGMENT (revised)

HER HONOUR: In these proceedings, the plaintiffs, Robert John Starr and Valerie Mary Starr (Plaintiffs), seek declaratory relief concerning a right of way for the benefit of their property, being Lot 212 of Deposited Plan 844257, known as Lot 212, Mitchells Flat Road, Mitchells Flat (Starr Property).
The first and second defendants, Robert Cyril George and Annette Louise George (George Defendants) are the registered proprietors of the land on which the Plaintiffs seek the right of way, being Lot 1 of Deposited Plan 783204 known as 374 Mitchells Flat Road, Mitchells Flat (George Property).
The third defendant is the Office of the Registrar General who has filed a submitting appearance in the proceedings.
The Plaintiffs claim that the right of way exists and has arisen by way of an express grant or, in the alternative, a prescriptive easement by long user over the George Property as sole access to the Starr Property. The Plaintiffs also seek consequential orders directing the third defendant to take the necessary procedural steps to register the right of way as an easement.
Prior to today’s hearing, the representatives for the Plaintiffs and George Defendants informed me that they had reached a resolution in the proceedings. They proposed consent orders, which included a declaration that the right of way, being the area described as “proposed right of carriageway 10 wide” shown in the Plan of Survey annexed to the proposed consent orders is a right of carriageway 10 metres wide burdening the George Property and benefiting the Starr Property.
It is not the practice of this Court to make declarations by consent without a hearing on the merits or in the absence of any facts which support the grant of a declaration: George Zoltan Ajkay v Hickey & Co Pty Limited [2011] NSWSC 822 at…

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 Starr v George

Details

AGLC: Starr v George [2019] NSWSC 60
Case: [2019] NSWSC 60
Decision Date: 07 February 2019

CaseChat Overview and Summary

The case of Starr v George involves a dispute over the existence and nature of an easement. The plaintiff, Starr, sought a declaration that an easement existed over a strip of land owned by the defendant, George. Starr claimed that the easement was either by express grant or by prescription, or alternatively by consent. The matter was heard in the Supreme Court of New South Wales.

The legal issues before the court were whether the easement existed by express grant, by prescription, or by consent. The court needed to determine whether the easement was established by an express agreement between the parties, whether it had been established through continuous use over a period of time, or whether the defendant had consented to the easement. The court also needed to consider the relevant evidence and applicable legal principles to decide on the existence and nature of the easement.

The court held that the easement did exist by consent. The court found that the evidence showed that the defendant had agreed to the easement, either expressly or impliedly, and that this was sufficient to establish the easement. The court noted that the evidence of the parties' conduct and communications demonstrated that the defendant had consented to the easement, either expressly or impliedly. The court held that this was sufficient to establish the easement, and that the other potential bases for the easement were not established.

The court made a declaration that an easement existed over the strip of land owned by the defendant, George, in favour of the plaintiff, Starr. The court found that the easement was established by consent, either expressly or impliedly, and that this was sufficient to establish the easement. The court did not make any findings on the other potential bases for the easement.

Orders