Court of Appeal
Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: Stolyar v Towers [2018] NSWCA 6 Hearing dates: 12 December 2017 Decision date: 05 February 2018 Before: Gleeson JA at [1]
Simpson JA at [85]
White JA at [86]Decision: (1) To the extent necessary, grant leave to appeal.
(2) Appeal dismissed.
(3) Appellants to pay the respondents’ costs.Catchwords: REAL PROPERTY – easements – validity of right of vehicle parking and garaging – whether use of easement area amounts to joint occupation of the easement area - degree of interference with area actually affected by easement or the whole of the servient land – whether right of vehicle parking and garaging substantially deprived servient owner of rights of proprietorship or possession of servient land – whether servient owner demonstrated that motor vehicles could not be turned around in the driveway without encroaching upon the easement area. Legislation Cited: Conveyancing Act 1919 (NSW), ss 88B, 89
Supreme Court Act 1970 (NSW), ss 75A(10), 101(2)(r)(i)
Uniform Civil Procedure Rules 2005 (NSW), rr 42.1, 51.52Cases Cited: Batchelor v Marlow [2003] 1 WLR 764
Clos Farming Estates Pty Ltd (Receivers and Managers Appointed) v Easton [2001] NSWSC 525; (2001) 10 BPR 18,845
Clos Farming Estates Pty Ltd v Easton [2002] NSWCA 389; (2002) 11 BPR 20,605
Harada v Registrar of Titles [1981] VR 743
Lolakis v Konitsas [2002] NSWSC 889
London & Blenheim Estates Ltd v Ladbroke Retail Parks Ltd (1992) 1 WLR 1278
Mogensen v Portuland Developments Pty Ltd (1983) NSW ConvR 55-116
Moncrieff and Anor v Jamieson and Ors [2007] UKHL 42; 1 WLR 2620
Multiplex Bluewater Marina Village Pty Ltd v Harbour Tropics Pty Ltd [2017] QCA 202
Queanbeyan Leagues Club Ltd v Poldune (1996) 7 BPR 15,078
Ray v Fairway Motors (Barnstaple) Ltd (1968) 20 P&CR 261
Re Cook [1964] VR 808
Re Ellenborough Park [1956] Ch 131
Registrar-General of New South Wales v JEA Holdings (Aust) Pty Ltd (2015) 88 NSWLR 321; [2015] NSWCA 74
S.S. & M. Ceramics Pty Ltd v. Kin [1996] 2 Qd R 540
The Owners of East Fremantle Shopping Centre West Strata Plan 8618 v Action Supermarkets Pty Ltd [2008] WASCA 180
Towers v Stolyar [2017] NSWSC 526
Weigall v Toman (2006) 1 Qd R 192; [2006] QSC 349
Westfield Management Ltd v Perpetual Trustee Company Ltd (2007) 233 CLR 528; [2007] HCA 45
Wilcox v Richardson (1997) 43 NSWLR 4Texts Cited: K Gray and SF Gray, Elements of Land Law (5th ed, 2009, Oxford UP) Category: Principal judgment Parties: Faina Stolyar (First Appellant / First Cross-Defendant)
Ian Stolyar (Second Appellant / Second Cross-Defendant)
Barrie Towers (First Respondent / First Cross-Claimant)
Celia Towers (Second Respondent / Second Cross-Claimant)Representation: Counsel:
Solicitors:
CJ Leggat SC (Appellants)
J Giles SC (Respondents)
Colin Biggers & Paisley (Appellants)
Tress Cox Lawyers (Respondents)
File Number(s): 2017/1647132017/313914 Decision under appeal
- Court or tribunal:
- Supreme Court of New South Wales
- Jurisdiction:
- Equity Division
- Citation:
- [2017] NSWSC 526
Continue reading Stolyar v Towers
Sign in free to access the full text
Details
- AGLC
- Stolyar v Towers [2018] NSWCA 6
- Case
- [2018] NSWCA 6
- Decision Date
CaseChat Overview and Summary
The appeal in *Stolyar v Towers* concerned the validity of a right of vehicle parking and garaging granted as an easement over land. The dispute arose between the registered proprietors of the dominant tenement, who held the benefit of the easement, and the registered proprietors of the servient tenement, who were subject to it. The appeal was heard by Gleeson, Simpson and White JJA in the Court of Appeal of New South Wales.
The central legal issues before the court were whether the use of the easement area for parking and garaging amounted to a joint occupation of that area, and whether this use substantially deprived the servient owner of their rights of proprietorship or possession of the servient land. The court was also required to consider the degree of interference with the area actually affected by the easement, as opposed to the whole of the servient land, and whether the servient owner had demonstrated that motor vehicles could not be turned around in the driveway without encroaching upon the easement area.
The Court of Appeal upheld the primary judge's decision, finding that the right of parking and garaging did not amount to joint occupation. The court reasoned that the easement granted a right to park and garage vehicles, not a right to exclusive possession of the land. The degree of interference with the servient land was assessed in relation to the specific area affected by the easement, and it was determined that the servient owner was not substantially deprived of their proprietary rights. The court also found that the servient owner had not demonstrated that vehicles could not be turned around without encroaching on the easement area.
Leave to appeal was granted to the extent necessary, but the appeal was ultimately dismissed. The appellants were ordered to pay the respondents’ costs.
The central legal issues before the court were whether the use of the easement area for parking and garaging amounted to a joint occupation of that area, and whether this use substantially deprived the servient owner of their rights of proprietorship or possession of the servient land. The court was also required to consider the degree of interference with the area actually affected by the easement, as opposed to the whole of the servient land, and whether the servient owner had demonstrated that motor vehicles could not be turned around in the driveway without encroaching upon the easement area.
The Court of Appeal upheld the primary judge's decision, finding that the right of parking and garaging did not amount to joint occupation. The court reasoned that the easement granted a right to park and garage vehicles, not a right to exclusive possession of the land. The degree of interference with the servient land was assessed in relation to the specific area affected by the easement, and it was determined that the servient owner was not substantially deprived of their proprietary rights. The court also found that the servient owner had not demonstrated that vehicles could not be turned around without encroaching on the easement area.
Leave to appeal was granted to the extent necessary, but the appeal was ultimately dismissed. The appellants were ordered to pay the respondents’ costs.
Orders
Orders of the court
(1) To the extent necessary, grant leave to appeal.
(2) Appeal dismissed.
(3) Appellants to pay the respondents’ costs.
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.