New South Wales
Court of Appeal
CITATION: Stephenson v Dwyer [2008] NSWCA 123 HEARING DATE(S): 14 February 2008
JUDGMENT DATE:
30 May 2008JUDGMENT OF: Mason P at 1; Hodgson JA at 72; McColl JA at 123 DECISION: Appeal dismissed with costs. CATCHWORDS: CONTRACTS – EASEMENTS – Documents signed by neighbours containing terms for extinguishment of easement – Signatures expressed as signifying “in principle approval” – Whether binding agreement intended – If so, whether order under s 89 of the Conveyancing Act 1919 (NSW) should be made – Whether necessary, for such an order, that a mortgagee of dominant tenement agree or be joined as a party to the proceedings – Whether necessary, for such an order, that the party agreeing to extinguishment of the easement receive the consideration for that agreement. LEGISLATION CITED: Real Property Act 1900 (NSW) s 49(4), s 56
Conveyancing Act 1919 (NSW) s 54A, s 89CATEGORY: Principal judgment CASES CITED: Ashoil Holdings Pty Ltd v Fassoulas (2005) 12 BPR 23,525; [2005] NSWCA 80
Cacace v Bayside Operations Pty Ltd [2006] NSWSC 572
Chiu v Healey (2003) 11 BPR 21,241; [2003] NSWSC 857
Re Ellenborough Park [1956] Ch 131
Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8; (2002) 209 CLR 95
English Scottish and Australian Bank Ltd v Phillips (1937) 57 CLR 302
GR Securities Pty Ltd v Baulkham Hills Private Hospital Pty Ltd (1986) 40 NSWLR 631
Masters v Cameron (1954) 91 CLR 353
Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; (2004) 218 CLR 451
Pieper v Edwards [1982] 1 NSWLR 336
Pralle v Scharka [1978] 2 NSWLR 450
Stephenson v Dwyer [2006] NSWSC 1439
Treweeke v 36 Wolseley Road Pty Ltd (1972) 128 CLR 274
Wolfe v Freijahs’ Holdings Pty Ltd [1988] VR 1017TEXTS CITED: Bradbrook and Neave, Easements and Restrictive Covenants in Australia 2nd ed, Butterworths, Sydney 2000 at §§19.2, 19.6
Gaunt, Gale, Morgan, Gale on Easements 17th ed, Sweet & Maxwell, London 2002 at §§12-13–12-18, §§19.125-19.127
Halsbury’s Laws of Australia, (2006) vol 355, para 12235PARTIES: Alan STEPHENSON (First Appellant)
Valerie STEPHENSON (Second Appellant)
Robert Stewart DWYER (First Respondent)
Ruth Anne MADDIGAN (Second Respondent)
Simon Paul POIDEVIN (Third Respondent)
Paula BRUCE (Fourth Respondent)FILE NUMBER(S): CA 40047/07 COUNSEL: D F JACKSON QC/V R W GRAY (Appellants)
IN PERSON - submitting appearance – (First and Second Respondents)
R C B SCOTT (Solicitor) - submitting appearance (Third Respondent)
R E DUBLER SC/ P BOLSTER (Fourth Respondent)SOLICITORS: Peter M Wayne & Associates (Appellants)
Surry Partners Lawyers (First and Second Respondents)
Taylor & Scott (Third Respondent)
Verekers (Fourth Respondent)LOWER COURT JURISDICTION: Supreme Court - Equity Division LOWER COURT FILE NUMBER(S): SC 2105/05 LOWER COURT JUDICIAL OFFICER: Biscoe AJ LOWER COURT DATE OF DECISION: 22 December 2006 LOWER COURT MEDIUM NEUTRAL CITATION: Stephenson v Dwyer [2006] NSWSC 1439
CA 40047/07
SC 2105/0530 MAY 2008MASON P
HODGSON JA
McCOLL JA
Alan STEPHENSON and Anor v Robert Stewart DWYER and 3 Ors
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- AGLC
- Stephenson v Dwyer [2008] NSWCA 123
- Case
- [2008] NSWCA 123
- Decision Date
CaseChat Overview and Summary
Stephenson and Dwyer were neighbours involved in a dispute concerning the extinguishment of an easement. The matter came before the New South Wales Court of Appeal.
The Court of Appeal was required to determine whether documents signed by the neighbours, which contained terms for the extinguishment of an easement and were expressed as signifying "in principle approval," constituted a binding agreement. If a binding agreement was found, the Court also had to consider whether an order under section 89 of the *Conveyancing Act 1919* (NSW) for the extinguishment of the easement should be made. Further issues included whether the agreement of, or joinder as a party to the proceedings by, a mortgagee of the dominant tenement was necessary for such an order, and whether the party agreeing to the extinguishment was required to receive the consideration for that agreement.
The Court reasoned that the documents, despite the "in principle approval" wording, evinced an intention to be bound by the terms agreed upon for the extinguishment of the easement. The Court found that the requirements of section 89 of the *Conveyancing Act 1919* were met, and that the agreement of a mortgagee was not a prerequisite for making an order under that section. Furthermore, the Court held that it was not necessary for the party agreeing to the extinguishment to have received the consideration for that agreement at the time the order was sought.
The appeal was dismissed with costs.
The Court of Appeal was required to determine whether documents signed by the neighbours, which contained terms for the extinguishment of an easement and were expressed as signifying "in principle approval," constituted a binding agreement. If a binding agreement was found, the Court also had to consider whether an order under section 89 of the *Conveyancing Act 1919* (NSW) for the extinguishment of the easement should be made. Further issues included whether the agreement of, or joinder as a party to the proceedings by, a mortgagee of the dominant tenement was necessary for such an order, and whether the party agreeing to the extinguishment was required to receive the consideration for that agreement.
The Court reasoned that the documents, despite the "in principle approval" wording, evinced an intention to be bound by the terms agreed upon for the extinguishment of the easement. The Court found that the requirements of section 89 of the *Conveyancing Act 1919* were met, and that the agreement of a mortgagee was not a prerequisite for making an order under that section. Furthermore, the Court held that it was not necessary for the party agreeing to the extinguishment to have received the consideration for that agreement at the time the order was sought.
The appeal was dismissed with costs.
Orders
Orders of the court
Appeal dismissed with costs.
Background
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Decision
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Ratio Decidendi
Legal Principle Established
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