Tanlane Pty Ltd v Moorebank Recyclers Pty Ltd

In the case of Tanlane Pty Ltd v Moorebank Recyclers Pty Ltd, the parties were adjoining landowners in the Moorebank precinct who had entered into a deed to facilitate the redevelopment of their respective lands. The deed included an agreement whereby Moorebank Recyclers Pty Ltd would grant Tanlane Pty Ltd an easement for the construction and use of a road bridge, contingent on the commencement of construction within five years from the date of the deed. In the event of non-commencement, the deed could be terminated (Clause 9). Tanlane Pty Ltd subsequently brought an action against Moorebank Recyclers Pty Ltd, arguing that the latter had breached the Mackay v Dick obligations by failing to commence construction. The dispute was heard by the Supreme Court of New South Wales.

The primary legal issues the court had to address were whether Moorebank Recyclers Pty Ltd had indeed breached its obligations under Mackay v Dick and if so, whether this was the cause of Tanlane Pty Ltd's failure to commence construction. Additionally, the court had to determine whether an easement, as indicated by the plan, accurately reflected the parties' intended location, and whether section 89 of the Conveyancing Act 1919 could be invoked to relocate the easement to traverse a different track.

The court held that there was no evidence of any construction work being commenced on the bridge by Tanlane Pty Ltd. However, it found that the plaintiff's failure to commence construction was not due to any breach by Moorebank Recyclers Pty Ltd of its Mackay v Dick obligations. The court also ruled that the easement as depicted on the plan did not align with the parties' intended location. Concerning the relocation of the easement, the court concluded that a complete change in the track of the easement was beyond the power conferred by section 89 of the Conveyancing Act 1919. The application under section 88K of the Conveyancing Act for the grant of a new easement was left undecided pending the outcome of the Land and Environment Court proceedings and the assessment of the appropriate compensation.

The court's final orders were that Moorebank Recyclers Pty Ltd was not in breach of its obligations under Mackay v Dick, and therefore, the deed was not terminated on that basis. The relocation of the easement was not permitted under section 89 of the Conveyancing Act 1919. The application for the grant of a new easement remained unresolved, pending further proceedings and assessments.