The Owners of Corinne Court 290 Stirling Street Perth Strata Plan 12821 v Shean Pty Ltd

[2000] WASC 181

THE OWNERS OF CORINNE COURT 290 STIRLING STREET PERTH STRATA PLAN 12821 -v- SHEAN PTY LTD & ANOR [2000] WASC 181

Reported Decision:	(2000) 23 WAR 1
Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2000] WASC 181
Case No:	CIV:1705/1999	Heard:	17-19 MAY 2000
Coram:	HASLUCK J	Delivered:	20/07/00
No of pages:	47	Judgment Part:	1 of 1
Result:	Declaration in favour of plaintiff that present user of right of way exceeds the terms of the grant of easement
PDF Version

Parties:	THE OWNERS OF CORINNE COURT 290 STIRLING STREET PERTH STRATA PLAN 12821 SHEAN PTY LTD REGISTRAR OF TITLES
Catchwords:	Transfer of Land Act 1893 Application to extinguish easement because of changed circumstances Subsidiary issue concerning indefeasibility Matters in contemplation at time of grant Excessive user of right of way due to redevelopment of dominant tenement Declaratory relief as to limits of easement in favour of servient tenement
Legislation:	Dividing Fences Act 1961 Limitation Act 1935, s 4 Statute of Frauds , s 4 Strata Titles Act 1966 Strata Titles Act 1985 Supreme Court Act 1935, s 24(7) Transfer of Land Act 1893, s 53(2), s 58, s 129C
Case References:	Barrett v RSE Holdings Pty Ltd [1999] WASC 128 Breskvar v Wall (1971) 126 CLR 376 C Hunton Ltd v Swire [1969] NZLR 232 Ex parte Proprietors of Averil Court Building Units [1983] Qd R 66 Finlayson v Campbell (1997) NSW Conv R 55-825 Frazer v Walker [1967] 1 AC 569 Gallagher v Rainbow (1994) 179 CLR 624 Harris v Flower (1904) 74 LJ Ch 127 Jelbert v Davis [1968] 1WLR 589 Kort Pty Ltd v Shaw [1983] WAR 113 Re Ellenborough Park [1956] 1 Ch 131 Re Ghey & Galton's Application [1957] 2 QB 650 Re Markin & Roberts [1966] VR 494 Smith v Australian Real Estate & Investment Co Ltd [1964] WAR 163 Taylor v Corporation of St Helens (1877) 6 Ch D 264 Treweeke v 36 Wolseley Road Pty Ltd (1973) 128 CLR 274 Webster v Bradac (1993) 5 BPR 12032 Assets Company Ltd v Mere Roihi [1905] AC 176 Boyd v Mayor of Wellington [1924] NZWR 1174 Brady v Brady (1874) 8 SALR 219 Gibbs v Messer [1891] AC 248 Graham v Philcox [1984] 1 QB 747 Loke Yew v Port Swettenham Rubber Company Ltd [1913] AC 491 Malden Farms Ltd v Nicholson (1956) 3 DLR (2d) 236 Morpath Pty Ltd v ACT Youth Accommodation Group Inc (1987) 74 ALR 121 Re Henderson's Conveyance [1940] Ch 835 Rodwell v G R Evans and Company Ltd (1977) 3 BPR 9114

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : THE OWNERS OF CORINNE COURT 290 STIRLING STREET PERTH STRATA PLAN 12821 -v- SHEAN PTY LTD & ANOR [2000] WASC 181 CORAM : HASLUCK J HEARD : 17-19 MAY 2000 DELIVERED : 20 JULY 2000 FILE NO/S : CIV 1705 of 1999 BETWEEN : THE OWNERS OF CORINNE COURT 290 STIRLING STREET PERTH STRATA PLAN 12821

Plaintiff

AND

SHEAN PTY LTD
First Defendant

REGISTRAR OF TITLES
Second Defendant

Catchwords:

Transfer of Land Act 1893 - Application to extinguish easement because of changed circumstances - Subsidiary issue concerning indefeasibility - Matters in contemplation at time of grant - Excessive user of right of way due to redevelopment of dominant tenement - Declaratory relief as to limits of easement in favour of servient tenement

Legislation:

Dividing Fences Act 1961

Limitation Act 1935, s 4


(Page 2)

Statute of Frauds , s 4
Strata Titles Act 1966
Strata Titles Act 1985
Supreme Court Act 1935, s 24(7)
Transfer of Land Act 1893, s 53(2), s 58, s 129C

Result:

Declaration in favour of plaintiff that present user of right of way exceeds the terms of the grant of easement

Representation:

Counsel:

Plaintiff : Mr M J Bateman
First Defendant : Mr P T Arns
Second Defendant : No appearance

Solicitors:

Plaintiff : Batemans
First Defendant : Arns & Associates
Second Defendant : No appearance

Case(s) referred to in judgment(s):

Barrett v RSE Holdings Pty Ltd [1999] WASC 128
Breskvar v Wall (1971) 126 CLR 376
C Hunton Ltd v Swire [1969] NZLR 232
Ex parte Proprietors of Averil Court Building Units [1983] Qd R 66
Finlayson v Campbell (1997) NSW Conv R 55-825
Frazer v Walker [1967] 1 AC 569
Gallagher v Rainbow (1994) 179 CLR 624
Harris v Flower (1904) 74 LJ Ch 127
Jelbert v Davis [1968] 1WLR 589
Kort Pty Ltd v Shaw [1983] WAR 113
Re Ellenborough Park [1956] 1 Ch 131
Re Ghey & Galton's Application [1957] 2 QB 650
Re Markin & Roberts [1966] VR 494
Smith v Australian Real Estate & Investment Co Ltd [1964] WAR 163


(Page 3)

Taylor v Corporation of St Helens (1877) 6 Ch D 264
Treweeke v 36 Wolseley Road Pty Ltd (1973) 128 CLR 274
Webster v Bradac (1993) 5 BPR 12032

Case(s) also cited:

Assets Company Ltd v Mere Roihi [1905] AC 176
Boyd v Mayor of Wellington [1924] NZWR 1174
Brady v Brady (1874) 8 SALR 219
Gibbs v Messer [1891] AC 248
Graham v Philcox [1984] 1 QB 747
Loke Yew v Port Swettenham Rubber Company Ltd [1913] AC 491
Malden Farms Ltd v Nicholson (1956) 3 DLR (2d) 236
Morpath Pty Ltd v ACT Youth Accommodation Group Inc (1987) 74 ALR 121
Re Henderson's Conveyance [1940] Ch 835
Rodwell v G R Evans and Company Ltd (1977) 3 BPR 9114

(Page 4)

1 HASLUCK J: The originating summons in this matter was issued by a corporate body known as The Owners of Corinne Court 290 Stirling Street Perth Strata Plan 12821 in the State of Western Australia. The plaintiff seeks an order pursuant to s 129C of the Transfer of Land Act 1893 that the right of carriageway by way of easement granted on 3 July 1985 over portion of the common property on strata plan 12821 as set out in transfer D59531 be wholly extinguished. The plaintiff also seeks ancillary orders for cancellation of the right of carriageway over related title documents under the control of the second defendant as Commissioner of Titles. The second defendant was not represented at the hearing and I understand that he will simply abide the outcome of these proceedings.

2 Various affidavits were filed by the plaintiff in support of its application being more particularly four affidavits sworn by Shelley Elizabeth Middleton (who was authorised to swear the same by resolution of the plaintiff company), an affidavit of Marina Bull, sworn 22 June 1999, and an affidavit of Albert Alexander Carse, sworn 29 February 2000. The first defendant, Shean Pty Ltd, relied on affidavits sworn by a director of the company, Michael Frawley, and by a former owner of the subject land, Graeme Norton. As a consequence of directions given prior to the hearing some of the deponents were cross-examined upon their affidavits. Further, during the course of the hearing, various documents were received in evidence including an agreed book of documents. The exhibits included a number of plans which became a useful point of reference as the hearing proceeded. A sketch plan prepared by a licensed surveyor, Mr B Pasotti, on 21 November 1996 is annexed to this judgment as annexure 1 (the "Pasotti plan"). A site design prepared by a Mr Martin on 5 June 2000 is annexed to this judgment as annexure 2 (the "Martin design").

The History of the Easement

3 In order to understand the way in which the easement the subject of these proceedings came into existence, I will begin by looking at the evidence presented by Mr Norton. The Norton family had owned land on the corner of Bulwer Street and Stirling Street for a considerable period prior to 1960, the land in question being situated to the north of the central business district of Perth in an area that contained some business premises, but was largely residential. The position as at 1960 was that the corner lot, being Lot 19, was owned by Mr Norton and his sister, Mrs Kobelke. In that year they constructed office premises on Lot 19

(Page 5)

known as the Premier Film Centre. This comprised an administration building which was leased to tenants involved in the film industry, such as Colombia Pictures, British Empire Films, Fox, Paramount, United Artists and Universal Film Studios.

4 The Premier Film Centre on Lot 19 was constructed as a single-storey building, but incorporated a suspended concrete slab as a way of making provision for the addition of a second storey in due course. According to Mr Norton, the reason that the second storey was not constructed from the outset was that he and his sister knew that they would not obtain town planning approval for a two-storey building unless a sufficient car parking area could be provided for the occupants of the building. He had approached the owners of the adjoining property, being Lot 20, fronting Bulwer Street, but the owners of that property were not willing to sell. The Premier Film Centre had a front entrance on the corner of Bulwer Street and a rear entrance at the north-east corner of the building.

5 Mr Norton said that the area at the back of the Premier Film Centre was used for storage. Canisters of film were kept in the building for distribution to film theatres around Australia. At the rear of the Premier Film Centre, close to the entrance at the north-east corner, was a large shed that was also used for storage purposes, principally the storage of film reels. It was common ground at the hearing that this shed was situated upon and at the rear of the adjoining property, Lot 20, but its sliding doors opened onto Lot 19. This meant that vehicles could enter Lot 19 from Bulwer Street and reach the doors of the shed by traversing what was virtually a laneway constituted on the western side by the rear walls of the Premier Film Centre and on the eastern side by the sliding doors of the old corrugated iron shed situated on Lot 20 and the boundary fence separating Lots 19 and 20. I will call this "the laneway on Lot 19". Vehicles were accustomed to using the laneway on Lot 19 without crossing the boundary between Lot 19 and Lot 20, for the existing house on Lot 20 was still being used as a residence. The configuration I have just described is depicted on the Pasotti plan.

6 It is not immediately apparent from the Pasotti plan, but it was an undisputed fact that the property adjoining Lot 19 to the north was Lot 18. A block of residential flats had been established upon Lot 18 and this land also belonged to Mr Norton and his sister. During the 1960s one consequence of Lot 18 and Lot 19 being the subject of a common ownership was that a rectangular strip of land forming part of Lot 18, but situated immediately to the north of the boundary line of Lot 19, could be

(Page 6)

used as an additional avenue in order to obtain access to the storage shed situated on Lot 20. I will call this strip of land - running roughly west to east from a pavement crossover on Stirling Street to the shed on Lot 20 - "the carriageway on Lot 18".

7 Access to the flats upon Lot 18, known as Corinne Court, was obtained from Stirling Street with the improvements on the land being set back from the street frontage. Corinne Court basically comprises two blocks with a connecting walkway and has a ground floor and two floors above. The situation of the entrance to Corinne Court means that tenants and their guests will commence their journey to the flats via the carriageway on Lot 18. A few metres into the journey one diverges north-east via a bitumen driveway ending at the car bays at the rear of the flats. It follows from this that no improvements have ever been established on the carriageway. Carriers making deliveries to or collecting items from the rear of the Premier Film Centre, or the shed on Lot 20, were therefore at liberty to enter Lot 19 from Bulwer Street and head north along the laneway on Lot 19, departing via Stirling Street, or, alternatively, to enter from Stirling Street, traverse the carriageway on Lot 18 and the laneway on Lot 19, and exit via Bulwer Street. A route of this kind is not depicted precisely on the Pasotti plan, but the description I have given will enable an observer to see how such a route could be followed. I will call the route constituted by the laneway on Lot 19 and the carriageway on Lot 18, in its entirety, "the Premier Film Centre thoroughfare".

8 Mr Norton described the use made of this thoroughfare in par 9 of his affidavit, his reference to the "right of way" being a reference to what I have called the carriageway on Lot 18:

"Trucks would enter Lot 19 by means of the right of way at the rear of the building and park alongside the shed where they would be loaded with film. The trucks would then leave the premises via the Bulwer Street entrance to the property. Access to Lots 19 and 20 was available from both Bulwer Street and Stirling Street."

9 It was common ground at the hearing that as a security measure gates were used to close off the Premier Film Centre thoroughfare so that the route just mentioned could not be used outside business hours. More particularly, as one looks at the Pasotti plan (although the gates in question are not depicted upon that plan) one gate closed the gap between the north-eastern corner of the premises described on the plan as "existing

(Page 7)

building" and the premises described on the plan as "existing shed" ("the northern gate"), a second gate closed off the gap from the south-eastern corner of the existing building and the boundary between Lot 19 and Lot 20, that is to say, it was a gate preventing access to and from Bulwer Street ("the southern gate").

10 I digress briefly to note that the first affidavit of Ms Middleton, sworn 24 June 1999, contains a passage bearing upon the use made of the Premier Film Centre thoroughfare. She acquired her home unit in Corinne Court in 1990. With respect to the period after that date, she said that the house on Lot 20 was always occupied by tenants at varying times and the entrance to Lot 20 was by a gate next to the boundary fence dividing both Lots 19 and 20. Access to Lot 19 was at three points. Firstly, pedestrians could enter the building at the corner of Bulwer and Stirling Streets. For access by vehicle there was a security gate at Bulwer Street (this being what I have called the southern gate). There was also a similar gate which opened onto the carriageway (or right of way) on the property of Corinne Court (this being what I have called the northern gate). She went on to say that while the office complex on Lot 19 was only one storey, there were not too many tenants and there was little traffic using the carriageway on Lot 18. Because of the constricted space on Lot 19 there were no parking facilities, which caused many of the tenants to park their vehicles on the carriageway on Lot 18 in lieu of parking in either Bulwer or Stirling Streets. Steps were taken to forbid this practice.

11 In a later affidavit, sworn 29 September 1999, while commenting upon those portions of Mr Norton's affidavit concerning the use made of the Premier Film Centre thoroughfare, Ms Middleton said that as far as she was aware Mr Norton allowed his Lot 19 tenants the use of the shed at the rear of Lot 20 for the purpose of storage, but most of these tenants had left in the mid-1980s. She said further that from 1990 onwards she could state quite categorically that she never saw very much use being made of the carriageway on Lot 18 to service the storage shed on Lot 20. She never saw tenants of the Premier Film Centre utilising the carriageway on Lot 18 as a means of access to Lot 19. The route was secured by a cyclone gate with a chain and padlock.

12 Mr Norton and his sister purchased Lot 20 on 14 August 1968. The lot was subsequently transferred to a company controlled by Mr Norton, namely, Premier Nominees Pty Ltd, on 2 May 1976. Mr Norton said that shortly after Lot 20 was purchased he and his sister engaged architects and engineers to prepare plans for the addition of the second storey that

(Page 8)

had previously been in contemplation. The drawings provided for a parking area on Lot 20 and for access to Lots 19 and 20 to and from Stirling Street on the basis that the carriageway on Lot 18 could be used for that purpose. However, in fact, he and his sister resolved not to proceed with the proposed addition of a second storey.

13 Mr Norton went on to say that from 1983 to 1985 the tenants of the Premier Film Centre on Lot 19, being those involved in the film industry, progressively relocated to other premises. The building was relet to a number of other commercial tenants. The residence on Lot 20 was leased out to tenants with the shed at the back of the property being used for storage. One of the tenants was Mr Gerry Ball, who had a business in the city as a florist. The other tenant was the proprietor of a business trading as "Great House and Land Giveaway". The shed and house were used by the tenants for the storage of dried flowers and advertising material. Access to the shed continued to be via the Premier Film Centre thoroughfare, and thus by the carriageway on Lot 18 as a part of that thoroughfare. At about the same time as Lot 20 was transferred to Premier Nominees Pty Ltd, Lot 18 was also transferred to that company. Thus, as at mid-1985, the position was that Lots 18, 19 and 20 were all effectively under the control of Mr Norton and his sister. They were the registered proprietors of Lot 19. Their family company, Premier Nominees Pty Ltd, was by now the registered proprietor of the two adjoining lots, namely, Lot 18 and Lot 20.

14 In 1985 Mr Norton and his sister resolved to strata title the flats known as Corinne Court on Lot 18 and sell the various units as individual apartments. They had in mind at that time that Lots 19 and 20 would eventually be sold. It was against this background that legal advice was obtained from the law firm Jackson McDonald as to the various steps to be taken to carry these aspirations into effect.

15 The exact nature of the advice obtained from Jackson McDonald was not adduced in evidence, although Mr Norton in his evidence touched upon some of the relevant considerations. The contemporary legal documents are also a useful point of reference in reconstructing the tenor of the legal advice at that time. In essence, it seems that it was necessary to apply for registration of a strata plan in respect of Lot 18 pursuant to provisions of the Strata Titles Act 1985. The legal consequence was that upon registration of such a plan the owners of the various units comprising Corinne Court would be able to exercise dominion over the whole of Lot 18. The common property of the strata title owners included the carriageway on Lot 18 a portion of which, as I mentioned earlier, was

(Page 9)

the principal means of access to Corinne Court. This could prove inconvenient to the owner of Lot 19, bearing in mind the use that had been made of the Premier Film Centre thoroughfare to provide access to the Premier Film Centre and the shed on Lot 20. Accordingly, steps were taken to convert the carriageway on Lot 18 to a formal easement in favour of the registered proprietor Lot 19.

16 I will look at the steps taken to carry this purpose into effect in a moment. Before doing so, I digress briefly to note that, according to the evidence of Mr Norton, the directors of Premier Nominees Pty Ltd considered it important that the occupiers of both Lots 19 and 20 should have access to Stirling Street, bearing in mind that by then some use was being made of the shed by tenants of the premises on Lot 20. According to Mr Norton, access to Lots 19 and 20 from both Bulwer Street and Stirling Street was a matter of commonsense. It enhanced the value of the premises and a continuing use of the carriageway on Lot 18 was consistent with the previous and existing use of the various pieces of land. It is a matter in controversy in these proceedings, however, having regard to the language of the relevant documentation, as to whether the easement actually created should be regarded as being for the benefit of the owners from time to time of Lot 19 only or for the benefit of the owners of both Lot 19 and Lot 20. I will return to this aspect of the matter in due course.

17 Searches of documents held at the Titles Office show that on 3 July 1985 various dealings were lodged for registration at the Land Titles Office. At 12.30 pm on that day, Premier Nominees Pty Ltd as the owner of Lot 18 lodged an application for registration of strata plan 12821. The relevant documents included a certificate from the City of Perth as the local authority certifying that the building was suitable to be divided into lots pursuant to the Strata Titles Act 1966. The postal address of the building was said to be 290 Stirling Street, Perth and the premises were described as a three-storey brick and tile residential complex of 30 units, situated on Lot 18.

18 At the same time and contemporaneous with the registration of the said application and plans at 12.30 pm on 3 July 1985 a grant of easement, being transfer D59531, was registered at 12.30 o'clock on 3 July 1985, such easement purporting to be created by The Owners of Corinne Court, 290 Stirling Street, Perth, Strata Plan 12821 in favour of Premier Nominees Pty Ltd, which company was described as the proprietor at the time of Lot 19. The imprint of the common seal of the corporate body appears on the relevant documents and purports to have been affixed by the authority of the owners in the presence of two signatories whose

(Page 10)

names are given as Kenneth Francis O'Brien and Aird Park Wells. The affixing of the common seal purports to certify that in accordance with s 20 of the Strata Titles Act 1985 the resolution to grant an easement in favour of Premier Nominees Pty Ltd was duly passed and that all necessary consents were given. The instrument in question is described as "easement dated 3 July 1985 to Premier Nominees Pty Ltd of part of the common property in strata plan 12821".

19 The deed of easement purports to be made between The Owners of 290 Stirling Street - strata plan 12821 - as the grantor of the one part and Premier Nominees Pty Ltd as the grantee of the other part. It contains a recital to the effect that the grantor is a strata company duly constituted under the Strata Titles Act 1985. Further, by an unanimous resolution of the members of the grantor, the grantor has consented to the execution of a grant of easement in favour of the grantee. The deed then provides:

"The grantor hereby transfers and grants unto the grantee and its successors in title the owners and occupiers for the time being of all that land being portion of each of Perth town lots N119 and N120 and being Lot 19 on diagram 25210 being the whole of the land comprised in certificate of title volume 1274 folio 796 and their respective servants, agents, invitees and licensees (in common with the grantee and all others having like right) at all times with or without vehicles of any description and for all purposes connected with the use and enjoyment of those lands and right to pass and repass over that part of the common property in strata plan 12821 delineated on the plan annexed hereto and thereon marked shaded brown."

20 The deed of easement also purports to have been executed under the common seal of the plaintiff company in the presence of Kenneth Francis O'Brien and Aird Park Wells. It was common ground at the hearing, as an agreed fact, that the land delineated on the relevant plan and shaded brown is the strip of land depicted on the annexure to transfer D059531, that is to say, the rectangular strip of land on the southern boundary of Lot 18 which is depicted on the Martin design as "existing R.O.W.". I have previously called this strip of land the carriageway on Lot 18, and I will continue to use that description, where the context permits, in dealing with the circumstances prior to 3 July 1985. Generally, however, I will henceforth refer to the carriageway on Lot 18 as "the right of way".

21 Simultaneously, on 3 July 1985, Lot 19 in certificate of title volume 1274, folio 796 was transferred from the previous owners,

(Page 11)

Graeme Leonard Norton and Corinne Gladys Kobelke, to Premier Nominees Pty Ltd. The result was that as from 3 July 1985 title to Lot 18 as the servient tenement subject to the right of way was vested in the plaintiff in these proceedings, as part of the common property belonging to the statutory corporation, The registered proprietor of Lot 19 as the dominant tenement was Premier Nominees Pty Ltd.

22 I pause here to draw attention to some evidence adduced by the plaintiff bearing upon the validity and/or effect of these transactions. Marina Bull is a strata manager employed by the McMahon Real Estate Company which has the management of Corinne Court. In an affidavit sworn 2 June 1999, she said that upon receiving instructions from the plaintiff's solicitors she made a search of the minute books of the Corinne Court strata company from the inception of the statutory corporation to the date of her affidavit. She ascertained that the first meeting of the owners of Corinne Court was held on 19 August 1985 at the office of Aird Wells Beller Pty Ltd. The minutes in question show that those present were Aird, Wells, O'Brien, Manning, Drummond and Elliott. According to the minutes, the business attended to included the appointment of A P Wells, K F O'Brien and R Elliott as councillors. A decision was made concerning caretakers and the fixing of a maintenance levy. The premises are said to be "in good condition at present with all units let." The minutes purport to have been authorised by Mr K F O'Brien as secretary/manager.

23 Marina Bull went on to say in her affidavit that she could not ascertain any meeting of the owners of Corinne Court held prior to 19 August 1985 where there was a unanimous resolution from all of the owners concerned nor of their consent in writing to the transfer as referred to in transfer D59531 as required by s 19(2) of the Strata Titles Act. That provision states that in the case of a two-lot scheme a strata company may, pursuant to a unanimous resolution, where satisfied that all persons concerned have consented in writing, execute a transfer or lease of common property.

24 The evidence of Mr Norton also has to be considered in regard to this aspect of the matter. His affidavit, and the title documents, to be read in conjunction with his observations, indicated that immediately prior to 3 July 1985 Premier Nominees Pty Ltd was the registered proprietor of Lot 18. There was nothing in his affidavit to suggest that prior to that date apartments at Corinne Court had been sold to third parties who were destined to become strata title owners of units within the Corinne Court complex. He was cross-examined about this aspect of the matter. His

(Page 12)

understanding from his solicitors was that he could not "contract with myself" and, thus, the easement constituting the proposed right of way on the southern boundary of Lot 18 would have to be created "when the units were sold". He agreed that Mr Wells had acted as his estate agent once a determination was made by he and his sister to proceed with the registration of a strata plan, but he was unable to say whether Mr Wells undertook some pre-selling of the units prior to registration of the plan.

25 Mr Norton's recollection was that he eventually received one lump sum payment for the Premier Nominees' interest in Corinne Court. When a transfer from Premier Nominees to Catherine Duane, dated 21 June 1985, relating to Lot 30 on strata plan 12821 was put to him for comment, he agreed that he might possibly have signed a series of transfers for individual units, but he did not have a clear recollection of doing so. I note in passing that it appears from the certificate of title to Lot 30, owned by Catherine Duane, that the transfer of the property into her name was effected at 12.33 pm on 3 July 1985 by transfer D59576. This suggests that at least one of the subject lots was beneficially owned by a third party prior to 3 July 1985, being the date on which the easement was registered purportedly pursuant to a resolution of the owners. She became the registered proprietor of her unit (Lot 30) a few minutes after registration of the strata plan.

26 I also note in passing that under cross-examination Mr Norton was not able to recall whether Mr Wells or Mr O'Brien had ever purchased or otherwise become owners of units at Corinne Court. The affidavit of Shelley Middleton, sworn 2 May 2000, reveals that a general search was undertaken at the Land Titles Office as a consequence of which she was able to verify that neither Aird Park Wells nor Kenneth Francis O'Brien ever owned any of the units of Corinne Court. Ms Middleton acquired her unit at Corinne Court in 1990 and has consistently attended all of the meetings of the strata company. She said in her affidavit that at no stage did she ever ascertain that either Mr Wells or Mr O'Brien were owners of units at Corinne Court.

27 Various other passages of testimony arising from cross-examination of Mr Norton are also material. I have already noted that the deed of easement was undated, albeit lodged for registration on 3 July 1985 at 12.30 pm. Mr Norton was unable to recall whether the deed was signed prior to that date. He relied upon his solicitors to attend to the formalities. He was unable to recall giving instructions to his solicitors, Jackson McDonald, that Mr Wells and Mr O'Brien would sign a resolution of strata title owners concerning the easement. He was unable to say who

(Page 13)

else might have given any such instructions. He confirmed that as far as he was aware no specific cash consideration was given for grant of the easement. No evidence was received from Mr Wells and Mr O'Brien and no evidence was adduced by or on behalf of the first defendant that Wells and O'Brien were the owners of units at Corinne Court at the relevant time or otherwise entitled to participate in a resolution effecting a grant of easement over what eventually became the common property of the strata title owners of Corinne Court.

28 In summary, then, on this point, evidence was adduced on behalf of the plaintiff casting doubt on the regularity of the procedures preceding the purported grant and registration of the easement in question. There is no doubt, however, that a right of way was actually registered at the Land Titles Office as an encumbrance affecting Lot 18 as a consequence of the various facts and matters previously mentioned. This is confirmed by looking firstly at annexure B to strata plan 12821 which contains a schedule of encumbrances. Within that schedule reference is made to transfer D59531 and "a right of carriageway over the portion of the within land coloured brown on the map in the margin as set out in the said transfer is granted to the proprietor or proprietors for the time being of Lot 19 on diagram 15210" with registration of the same having been effected on 3 July 1985. Further, when one turns to the current certificate of title for Lot 19, dated 3 July 1985, the estate vested in the registered proprietor is described in estate in fee simple in portion of each of Perth town lots N119 and N120, and being Lot 19 on diagram 25210 delineated and coloured green on the map in the third schedule hereto, together with a right of carriageway over the portion of the common property on strata plan 12821 coloured brown on the said map hereon as set out in transfer D59531. For ease or reference, I will refer to this aspect of the dispute as the "registration issue", such term being intended to embrace the regularity of the steps leading up to registration of the easement and the validity and/or indefeasibility of the registered encumbrance.

The Registration Issue

29 The position of the plaintiff in these proceedings in relation to the registration issue is that as at 12.30 pm on 3 July 1985 a strata company by the name of The Owners of 290 Stirling Street, Perth, was constituted by registration of Strata Plan 12821. This was a body corporate with a perpetual succession and a common seal and a body bound to observe procedures prescribed by the Strata Titles Act. Premier Nominees Pty Ltd became the owner of Lots 1 to 30 on the strata plan after 12.30 pm on

(Page 14)

3 July 1985. It remained the owner of all units for a period of two minutes before the chain of ownership was broken at 12.33 pm by the registration of the Duane transfer. The signatories to the deed of easement, Messrs O'Brien and Wells, were not persons who were either the owners or had the authority as such to execute the deed of easement creating a right of way over the common property of the strata title company.

30 The plaintiff company submits in the alternative that if the chain of ownership was broken and Premier Nominees Pty Ltd was not the sole registered proprietor of all of the units in strata plan 12821, then there was no prior notice of meeting and no meeting in any event of the owners for the holding of a general meeting pursuant to s 3(c) of the Strata Titles Act specifying the resolution to grant the said easement. There was no unanimous resolution passed by the owners as required by s 19 and s 20 of the Strata Titles Act. Further, there were no consents in writing as required by s 20 of the Strata Titles Act, s 136(e) of the Transfer of Land Act and s 4 of Statute of Frauds to transfer an interest in the common property of the strata property to the registered proprietor of Lot 19 as the owner of the dominant tenement.

31 I will return to the registration issue later. It will suffice for the moment to say that the first defendant joined issue as to this aspect of the matter. It placed considerable reliance upon the various provisions of the Transfer of Land Act concerning indefeasibility of title as a basis for saying that it was not now open to the plaintiff to challenge the validity of the easement or otherwise to rely upon the facts and matters encompassed by the registration issue as a basis for extinguishing the easement or to obtain a ruling that the right of way could no longer be enjoyed by the owner of the dominant tenement.

The Redevelopment of the Dominant Tenement

32 It is apparent from the narrative to this point that although Mr Norton and his sister through the agency of the family company, Premier Nominees Pty Ltd, were able to divest themselves of their interest in Lot 18, Premier Nominees Pty Ltd continued as the registered proprietor of Lots 19 and 20. Mr Norton said in his affidavit that the proposal to add a second storey to the building on Lot 19, known as the Premier Film Centre, arose again in 1989. At that time, the company engaged experts to plan and cost a possible extension to the building, but a decision was made not to proceed with the proposal because of the perceived over-supply of office accommodation in Perth at that time. Mr Norton

(Page 15)

said in his affidavit that the proposal for the extension of the building to two storeys in 1989 provided for access to the building from Stirling Street with the occupiers having the use of the right of way.

33 Mr Norton said also that he was aware from his own observations that prior to the sale of Lot 19 to the current owners - the first defendant Shean Pty Ltd - the tenants of Lot 19 frequently used the right of way as a car park. According to him, there were never any complaints from the owners of the units of Corinne Court. He went on to say that prior to the sale of Lots 19 and 20 to the first defendant, he had several discussions with a director of the company, Mr Mike Frawley, during which he described the history and purpose behind the grant of the right of way. These discussions proceeded on the basis that the right of way was a feature of and a substantial benefit to future tenants of the building. Under cross-examination, Mr Norton confirmed that the practice concerning the northern and southern gates at each end of the Premier Film Centre thoroughfare was for the gates to be open during business hours, but closed thereafter. This meant that passers-by could not use the thoroughfare after business hours as a "short cut" or alternative route between Bulwer Street and Stirling Street or vice versa.

34 Mr Frawley, in his capacity as a director of Shean, swore an amended affidavit of 11 May 2000 in support of the first defendant's opposition to the orders sought in the originating summons. Exhibited to the affidavit is a copy of a contract in writing, dated 25 June 1996, providing for the sale of Lots 19 and 20 by Premier Nominees Pty Ltd to Shean at a purchase price of $650,000 upon the basis that the property was zoned residential R80 and that the existing commercial building did not conform to the zoning and was subject to various lease commitments.

35 Mr Frawley's affidavit goes on to say that the defendant company purchased the lots for the purposes of redevelopment. At that time, the building on the land was a large, substantially run-down office building which was partitioned into separate offices and rented out to approximately 12 individual tenants. As far as Mr Frawley was concerned, an important feature of the building was that it had been constructed with a suspended slab which allowed for immediate extension and development by the addition of a second storey. The adjacent lot, being Lot 20, had erected on it the shed and house depicted on the Pasotti plan, of which mention has been made earlier. Mr Frawley said that he was aware of the existence of the right of way and it was an important factor in his decision to make the offer to purchase. He intended to redevelop the office building and he had in mind that the tenants would

(Page 16)

have the use of the right of way to gain access to the building from both Bulwer and Stirling Streets. Had the Town of Vincent refused the application to develop the site for commercial purposes, his intention was to develop the site for residential apartments, this being consistent with the zoning.

36 Mr Frawley said, further, that in late 1996 he approached the strata company manager of the plaintiff with a view to purchasing the land the subject of the right of way. This offer was rejected. In May 1997 planning approval for the redevelopment of Lots 19 and 20 was granted. In August 1997 Shean proceeded to demolish the existing sheds and houses on Lot 20 and commenced major refurbishment of the office building on Lot 19. Mr Frawley said that the redevelopment of the site was completed in March 1998 and the refurbished offices were subsequently let to tenants in December 1998. The current tenants are Joseph Charles Learmonth Duffy, the Hairdressers' Registration Board and Occtec Engineering.

37 It appears from Mr Frawley's affidavit that as part of the redevelopment car bays were marked out where the storage shed and house had previously been located on Lot 20. I pause to note that the relationship between the car bays on Lot 20 to the building on Lot 19 is apparent from the Martin design. Mr Frawley suggested that the bays numbered 21 to 37, that is to say, the bays nearest to Lot 19 on the western side of Lot 20, are mostly on Lot 19.

38 Mr Frawley said further that as part of the redevelopment, a new brick wall was erected along the boundary between Lots 20 and 21 and extending along the north-eastern boundary between Lots 20 and 18. The wall in each case was erected entirely at the expense of Shean and replaced a dilapidated fence. In September 1998 he was informed by the solicitor for the plaintiff that the plaintiff intended to extend the wall at the north-eastern end of the right of way by a further two metres along the north-eastern boundary line of Lots 18 and 19. These walls are depicted on the Martin design with the small section of wall erected by the plaintiff being marked with the letter B.

39 Mr Frawley said that as a direct consequence of the extension of the wall by the plaintiff, access by users of the right of way to the car park was restricted. It also rendered the last car bay marked at the northern end of the car park entirely useless. It was useless because if a car used the last bay, it would block off access to the right of way. Evidence was given at the hearing before me that the white lines delineating the last car

(Page 17)

bay at the northern end of the car park have now been blacked out as a consequence of work undertaken by employees or agents of the local authority, with the result that even if each delineated car bay in the parking area was occupied by a parked vehicle, it is possible, notwithstanding the extension of the wall at B on the Martin plan, for a vehicle parked on Lot 20 to pass through the gap between the wall and the building on Lot 19 to reach the right of way, and thus exit via Stirling Street.

40 It was common ground at the hearing, and is apparent from the Martin design, that the galvanised iron gates which previously allowed the Premier Film Centre thoroughfare to be closed off outside office hours were removed as part of the redevelopment. Since the removal of those gates there has never been any gate or barrier closing off the gap between the north-eastern corner of the Lot 19 building and the boundary wall at B on the Martin design. The gate allowing access to the thoroughfare from Bulwer Street, being a gate closing the gap between the southern corner of the building on Lot 19 and the boundary between Lots 19 and 20, has been replaced by a wall.

41 In overview, then, in the process of redevelopment the defendant Shean not only demolished the house and storage shed on Lot 20, but also the boundary fence between Lots 19 and 20. The defendant removed the gates which had originally stopped the public from using the Premier Film Centre thoroughfare after business hours. There are now 37 car bays on the combined lots, while as previously there were none. The Bulwer Street exit for what was previously the laneway on Lot 19 has been closed by a brick fence. The entrance/exit to what was previously a domestic residence on Lot 20 has been enlarged to approximately six metres in order to service the car park established substantially on Lot 20 and partially on Lot 19. There is no gate on this exit to exclude members of the public from the use thereof. Entrance to the office building on Lot 19 is through its main entrance, situate at the corner of Bulwer and Stirling Streets, a side entrance on Stirling Street and entrance from what has previously been described as the rear entrance at the north-eastern corner.

42 This latter entrance can be reached on foot by tenants and their customers approaching the building from Stirling Street and then using the right of way to arrive at the rear entrance. Alternatively, if tenants or their clients have parked in Bulwer Street, or in the new parking area substantially on Lot 20, then they can walk freely to the rear entrance from that direction. Mr Frawley conceded under cross-examination that if a wall or dividing fence was established on the boundary between Lot 18

(Page 18)

and Lot 20, then this would not prevent access to the building on Lot 19 via the rear entrance, although such a state of affairs might prove to be a matter of inconvenience to users of the building. In that event, those approaching the building from Stirling Street would be obliged, rather than using the rear entrance in the present manner, to enter the building via the main entrance on the corner or, alternatively, to walk past the main entrance, traverse the car park substantially on Lot 20, and find their way to the rear entrance at the north-eastern corner of the building.

43 The parties are in dispute as to the effect of the redevelopment of Lots 19 and 20 in the manner depicted on the Martin design.

44 Shelley Middleton said in her affidavit, sworn 24 June 1999, that while the office complex on Lot 19 was only one storey, there were not too many tenants and there was little traffic utilising the right of way over Lot 18. Because of the constricted space on Lot 19, there were no parking facilities. This caused some tenants to park their vehicles on the carriageway in lieu of parking in either Bulwer or Stirling Streets, Perth. Complaints were made and this eventually brought the practice to an end.

45 According to Ms Middleton, after the reconstruction of the office complex with the addition of an extra storey and the complete refurbishment of the interior, the tenancies have now slowly been taken up with the major tenancy being that of Joseph Charles Learmonth Duffy. From her observation, all of the tenants seem to use the car bays on the amalgamated lot with ingress and egress being through Bulwer Street and none appear to use the right of way. The bays in juxtaposition to the office building on Lot 19 are now nearly all occupied with only about three being unoccupied at the time when she viewed the same. When all are occupied, which will include the bay on the northern end, this will effectively block any ingress and egress from the right of way whether for the tenants or other persons, but only during office hours and weekdays alone.

46 She goes on to say that it is the general public that uses the right of way quite consistently as there is now unimpeded access between Corinne Court and the car park area substantially on Lot 20 leading to Bulwer Street. The traffic is particularly bad when there are Perth Glory home games at the Perth Oval. Supporters who park their cars in Stirling Street will utilise the unimpeded access as a short cut to the Perth Oval (lying to the south) and even across the lawns of Corinne Court, through the car park substantially on Lot 20 to reach Bulwer Street. Furthermore, some

(Page 19)

of the cars of the supporters use the right of way to park in the car park substantially on Lot 20.

47 She affirmed that if the easement was cancelled or extinguished, then the plaintiff would continue the boundary wall separating Lot 18 from Lots 19 and 20 in the same materials and thereby close off the access between Lot 18 and the other two lots so that there could be no thoroughfare by the general public as a short cut from Stirling Street to Bulwer Street. Her evidence, as summarised above, was supported by various photographs. She referred to increasing use of the grounds of Corinne Court as a short cut to Bulwer Street and ultimately Perth Oval and the consequent increase of general litter through the grounds of Corinne Court. Her evidence was also supported by the affidavit of Albert Carse, a professional video operator, who filmed the movement of pedestrians on 13 February 2000 on the occasion of a home game of the Perth Glory Soccer Club at Perth Oval against a visiting team. A further affidavit, sworn by Ms Middleton, referred to the use being made of the parking area on Lot 20 after hours, late at night, for the purposes of prostitution.

48 Ms Middleton, on behalf of the plaintiff company, contended that there has been a drastic change in the character of Lot 19 as the dominant tenement and that continuance of the easement provides no effective benefit or need for the present occupants of Lot 19. Further, the right of way now services Lot 20 which it did not previously do. The redevelopment has opened up the main entrance to Corinne Court to be virtually a public right of way for cars during the weekends and for pedestrians who cut across the lawns of Corinne Court, as described by her and as depicted on the video filmed by Mr Carse.

49 Mr Frawley, by his affidavit, referred to a number of competing considerations. He said that although the primary access to the office building is via the car park fronting onto Bulwer Street, he and other tenants of the office building will utilise the right of way onto Stirling Street to gain access to the building. The principal reason is that Bulwer Street is a very busy and potentially dangerous road. It is often difficult for traffic wishing to turn in either direction from the car park onto Bulwer Street. Visibility is poor. In late August 1999 the Town of Vincent, in conjunction with the Main Roads Department made changes to the intersection. They have also removed car park markings to the northern side of Bulwer Street between the car park entry to Lots 19 and 20 and the Stirling Street junction.

(Page 20)

50 Mr Frawley disputed that the right of way is used regularly by members of the public such that it is, or will become, a nuisance to the plaintiff. His observations have been that it is predominantly the tenants of the building and the individual strata title owners of the plaintiff that make pedestrian use of the right of way. He does not discount the possibility that members of the public will periodically use the car park as a thoroughfare. He accepted that there may have been instances when supporters of the Perth Glory soccer team parked their vehicles in the car park on Lots 19 and 20. He referred to the fact that signs were erected in the car park stating that the car park was private property and unauthorised users of the car park would be fined. He said that similar signs had been placed on the walls facing the right of way. He said that the unauthorised use of the car park and the right of way by members of the public in his experience was not a common occurrence and he was not aware of any cars using the right of way to park vehicles.

51 He went on to dispute the assertion of the plaintiff that the public will use the right of way and car park as a short cut between Stirling Street and Bulwer Street. The distance for the public through the car park is the same as if they used the public footpaths on Stirling Street and Bulwer Street. According to him, the car park only provides a short cut for tenants of Corinne Court wishing to get to Bulwer Street. He went on to say that he had also offered to the plaintiff to consent to the erection of a boom or gate at the north-eastern end of Lot 19 that could be closed to restrict access by the public after hours.

52 Mr Frawley denied that there has been a drastic change in the character of what was formerly Lot 19 and that the continued easement provides no effective benefit or need for the present occupants. He said that the right of way is used regularly by the occupiers of the office building and provides a substantial benefit. He disputed that the redevelopment had caused the right of way to be virtually a public right of way for cars during the weekends and for pedestrians who cut across the lawns of Corinne Court. The redevelopment of Lots 19 and 20 is a substantial improvement over what existed prior to the development from both a practical and aesthetic point of view. He referred to the fact that the boundary wall separating Lots 19 and 20 from Lot 18 were built at no cost to the owners of Corinne Court (save for the extension of the wall at B on the Martin plan). He said that use of the right of way, as it is presently utilised, provides less of a hindrance than was the case prior to the redevelopment. He disputed that the grant of easement was contrary to law.

(Page 21)

53 The first defendant also placed reliance upon a letter from its solicitors, Arns & Associates, dated 13 March 2000 to the solicitors for the plaintiff. The letter is in these terms:

"The video tape and Affidavit of Albert Carse which was delivered to my office on or about the 7th March 2000 shows a number of Glory supporters walking across the lawns at the property of your client through the carpark of the premises the property of my client.

The incentive for people to take a short cut across your client's property would be removed by the erection of a steel gate to the rear of the office building where the right of way leads into the car park.

We have written to you about such a proposed solution on a previous occasion. We are instructed to write to you again with this proposal:

1. Our client will arrange the installation of a gate being of steel construction and powder coated in either black or dark grey to the rear of the office building where the right of way leads into the car park.

2. The gate would be on an automatic time clock with the gate remaining open between the hours of 7.00am and 6.00pm and closed at all other times including the weekend.

3. The construction and specifications for the gate will be arranged by our client. Mr Frawley of our client is prepared to meet with representatives of your client to discuss and to settle on the final specifications.

4. The costs of construction and installation will be shared equally between our respective clients.

We again make the observation that the installation of the gate and its closure at all times other than normal working hours is a common sense solution that addresses all of the concerns of your client.

We invite you to take your client's instructions to settle these proceedings on the basis proposed. The offer remains open for

(Page 22)

acceptance for a period of 21 days from the date of this letter. If it is not accepted within that period, our client will be filing a further short affidavit annexing this letter."

54 It was common ground at the hearing that the plaintiff was not prepared to accept the proposal the subject of this letter on the grounds that it was not a sufficient remedy. I will call this the "defendant's proposal of 13 March 2000".

55 In order to complete the narrative there are certain other facets of the matter which should also be mentioned. Shean has applied for Lots 19 and 20 to be consolidated into one lot, namely, Lot 100, but this consolidation has not yet been effected, notwithstanding that Lots 19 and 20 are now in common ownership.

56 Ms Middleton said as to this aspect of the matter that some time early in 1997 the first defendant lodged a diagram with the Department of Land Administration for the consolidation of what was hitherto Lot 19 and Lot 20 into an amalgamated Lot 100. Correspondence exhibited to her affidavit revealed that to that date no application has been filed by the first defendant for a new certificate of title and it, therefore, seems that no consolidation has been effected. For this reason, I will continue to refer to Lots 19 and 20, as these are the only legally constituted lots, notwithstanding that there were various references to Lot 100 in the course of the evidence.

Resolution of the Registration Issue

57 I must now turn to the statutory provisions and related legal principles bearing upon the matters in issue. It will be useful to begin by looking first at provisions and principles relevant to the registration issue. It was common ground at the hearing that the starting-point in that regard is the Strata Titles Act 1985 which was assented to on 6 May 1985 and came into effect on 30 June 1985, that is to say, a few days prior to the application for registration of a strata plan concerning Lot 18 on 3 July 1985. The Act has been substantially amended since 1985, but for present purposes I am only required to look at the Act as it was in mid-1985.

58 By s 4 of the Strata Titles Act land may be subdivided into lots and common property by the registration of a strata plan.

59 Subsequent provisions contemplate that the owners of the various lots are to be regarded as members of a statutory corporation. This is

(Page 23)

provided for by s 32 which states that upon registration of a strata plan the proprietors from time to time shall constitute a strata company by the name of "the owners of (the name of the scheme)" and the number of the strata plan allocated to it by the Registrar of Titles. A strata company created under that provision is a body corporate with perpetual succession and a common seal. The strata company is capable of suing and being sued and shall be regulated in accordance with the Act and by-laws in force in respect of that strata company. By s 35 one of the duties of a strata company is to control and manage the common property for the benefit of all the proprietors.

60 By s 17 common property shall be held by the proprietors as tenants in common in shares proportional to the unit entitlements of their respective lots. Section 19 provided, as at 1985, that a strata company could, pursuant to a unanimous resolution, and where satisfied that all persons concerned have consented in writing, execute a transfer of common property. By s 20, as at 1985, a strata company could, pursuant to a resolution without dissent, execute a grant of easement burdening the parcel, that is to say, burdening the land comprised in the strata plan. A unanimous resolution is defined to include a resolution unanimously at a duly convened general meeting of the strata company at which all powers entitled to exercise the powers of voting are present and vote, either personally or by proxy. The strata company, if it is satisfied that all persons having registered interests in the parcel and all other persons having interests (other than statutory interests) which have been notified to the strata company have consented in writing to the proposed dealing, shall execute the appropriate instrument and any plan necessary therefor. Such an instrument shall be accompanied by a certificate under the seal of the strata company that the resolution was duly passed and that all necessary consents were given. The Registrar of Titles shall register the instrument creating the grant of easement by noting it on the strata plan in the manner prescribed.

61 Importantly, s 20(6) provides that in favour of persons dealing with the strata company pursuant to this section and in favour of the Registrar of Titles, the certificate provided by the company that a resolution was duly passed and consents given shall be conclusive evidence of the matters certified in it.

62 Section 34 dealt with contract formalities. It is in these terms:

"Contract formalities

(Page 24)

(1) In so far as the formalities of making, varying or discharging a contract are concerned, a person acting under the express or implied authority of a strata company may make, vary or discharge a contract in the name of or on behalf of the strata company in the same manner as if that contract were made, varied or discharged by a natural person.

(2) The making, variation or discharge of a contract in accordance with subsection (1) is effectual in law and binds the strata company and other parties to the contract.

(3) This section does not affect the operation of a law that requires some consent or sanction to be obtained, or some procedure to be complied with, in relation to the making, variation or discharge of a contract."

63 I now turn to various provisions of the Transfer of Land Act1893. It is well-known that one of the objects of legislation of this kind is to secure indefeasibility of title to all registered proprietors. The structure of the Act in this State resembles similar legislation in other parts of Australia in that indefeasibility of title is secured by provisions whereby judicial notice is to be taken of instruments and entries purporting to be authenticated by the Land Titles Office, the title of a registered proprietor is declared to be indefeasible (except in a case of fraud) subject to the qualifications noted on such title and certain specified statutory qualifications, and every certificate issued by the Registrar is conclusive evidence that the person named in such certificate is entitled to the estate or interest specified therein. Further, and importantly, no registered transferee acquiring bona fide for value is to be exposed to an action of any sort on the ground that the proprietor, through or under whom he claims, or any previous proprietor has been registered through fraud or error of any description: see Francis: Torrens Title in Australasia vol 1 p 573.

64 The credo I have just described in general terms is carried into effect by a number of specific provisions. They are well-known and it will be sufficient for present purposes to present them in summary form, omitting the inessential parts.

65 Section 53 of the Transfer of Land Act provides that the Registrar shall register an instrument in the order, and from the time, of its presentation. Instruments purporting to affect the same estate or interest

(Page 25)

have priority as between each other, according to the time of registration and not according to the date of the instrument, notwithstanding any actual or constructive notice. By s 58, instruments are not effectual until registered, but upon registration the estate or interest shall pass or, as the case may be, the land shall become liable in the manner specified in the instrument. By s 63, every certificate of title shall be conclusive evidence that the person named as the proprietor of, or having any estate or interest of the land described, is seised or possessed of such estate or interest.

66 Section 68, provides that the proprietor of land shall, except in case of fraud, hold the same subject to such encumbrances as may be notified on the registered certificate of title for the land, but absolutely free from all other encumbrances whatsoever, provided that the land shall be deemed to be subject to, inter alia, any public rights of way and to any easements acquired by enjoyment or user or subsisting over or upon or affecting such land. By s 134, except in the case of fraud, no person contracting or dealing with a person who is or becomes the proprietor of any registered land shall be required or in any manner concerned to acquire or ascertain the circumstances under which such proprietor or any previous proprietor thereof was or becomes registered or shall be affected by notice actual or constructive of any trust or unregistered interest any rule of law or equity to the contrary notwithstanding; and the knowledge that any such trust or unregistered interest is in existence shall not of itself be imputed as fraud.

67 Various provisions deal specifically with easements. By s 63A, certificates may contain a statement of any easement appurtenant to the subject land. By s 64, any such statement shall be received in all courts of law and equity as conclusive that the person named is so entitled. By s 65, where a transfer contains the words "together with a right of carriageway over" or words to that effect and specifies the land over which the easement is created by reference to a map on which the land is indicated by a symbol, then, unless the contrary intention appears, the words of the ninth schedule shall be deemed to have effect in relation to the transfer.

68 I pause to note that the words appearing in the ninth schedule refer to a right and for the registered proprietor or proprietors for the time being and his, her and their tenants, servants, agents, workmen and visitors to go pass and repass at all times hereafter and for all purposes either with or without animals or vehicles into and out of and from the said land or any part thereof through, over and along the road or way or several roads or ways delineated and indicated by a symbol on the said map.

(Page 26)

69 Section 66A provides that a separate certificate of title for an easement shall not be created. By s 69, Registrar shall specify upon any future certificate of such land as an encumbrance affecting the same any subsisting easement over or upon or affecting the same which shall appear to have been created by any deed or writing.

70 Section 85 is important in the circumstances of the present case. It provides that every transfer or other instrument shall be deemed of the same efficacy as if under seal; and when signed by the proprietor and registered shall be as valid and effectual to all intents and purposes for conveying passing or conferring the estates interests or rights expressed to be thereby transferred as a deed duly executed and acknowledged by the same person would have been under any law heretofore or now in force in Western Australia or as any other form of document would have been either at law or in equity.

71 It is apparent from these provisions that the basic concept is that a person who acquires land under the Torrens System, bona fide and for consideration, should be subject only to those interests he or she can discover from a search of the register. The principal exception to this concept of indefeasibility is fraud. Questions may also arise as to whether procedural or other irregularities affecting the validity of an instrument or a step in the process of registration can be viewed as a further exception to indefeasibility. It will be useful to look briefly at the decided cases in regard to these matters before turning to the circumstances of the present case.

72 While for a time it was held that particular invalidities in the process of transfer could prevent title passing, even after the completion of registration, it is now clear that if a document is registered, title passes to the registered transferee whatever the invalidity in the process of transfer. Breskvar v Wall (1971) 126 CLR 376. If the registered transferee can prove that the invalidity in the process of transfer did not amount to fraud on her or his part, and that he or she was not fraudulent in any other way, the title will be indefeasible. Where the invalidity in the process of transfer involves fraud on the part of the registered transferee, or there is otherwise fraud by that party, title still vests in the transferee, but it is a defeasible title. A previous registered proprietor who has been defrauded is able to bring an action to recover the title. See Bradbrook: Australian Real Property Law (2nd ed) par 4.25. It seems from Frazer v Walker [1967] 1 AC 569 that the exception of fraud relates only to fraud by the current registered proprietor or her or his agent.

(Page 27)

73 When these principles are applied to the circumstances of the present case, it is difficult to see how the registration issue can be resolved in the manner contended for by the plaintiff. In the absence of any specific evidence of fraud, the weight of the evidence suggests that as at 3 July 1985 when the easement was ostensibly created the strata title lots were owned by and under the control of Premier Nominees Pty Ltd and Messrs Wells and O'Brien were acting as proxies for the company. The lack of any formal minute evidencing a unanimous resolution to create an easement in favour of the owners of Lot 19 is disturbing, but when the certificate of regularity signed by Wells and O'Brien is considered, in conjunction with s 20(6) of the Strata Titles Act, the certificate is to be regarded as conclusive evidence of regularity.

74 Even if it were to be established to the satisfaction of the court that the resolutions of the corporate body preceding execution of the deed were defective, notwithstanding the conclusive certificate of regularity, or that the corporate body was not properly constituted at the time the deed was executed, the fact remains that the relevant transfer was registered at the Land Titles Office. In due course, a certificate of title was brought into existence concerning Lot 19 which shows that Lot 19, as the dominant tenement, is entitled to a right of way affecting Lot 18 as the servient tenement. Likewise, the certificate of title for Lot 18 portrays the right of way as an encumbrance. These facts and matters bring into play the principles of indefeasibility I mentioned earlier.

75 The certificates of title are conclusive evidence that the estates or interests are as depicted on those titles. If Lot 19 had remained under the ownership of Mr Norton and his sister, or their family company Premier Nominees Pty Ltd, then it might be possible to pursue the matters presently complained of by the owners of Corinne Court, having regard to the reasoning in Frazer v Walker (supra). In the event, however, it is an undisputed fact, this being apparent from the relevant certificate of title, that Lot 19, with Lot 20, was sold to the respondent company in mid-1996. There is no evidence suggesting that the respondent company was associated with any of the matters complained of. The evidence clearly shows that it was a bona fide purchaser for valuable consideration that purchased the land upon the basis of what was disclosed upon the register. This being so, s 134 of the Transfer of Land Act clearly establishes that the title of the respondent company, including its entitlement to the benefit of the easement in question, cannot now be impugned. Accordingly, as to this aspect of the matter -the registration issue - I find in favour of the first defendant with the result that there is no

(Page 28)

basis for extinguishing the easement upon the grounds contended for by counsel for the plaintiff.

76 Further, even if I be wrong in the view I have just expressed, it seems to me that this aspect of the claim is statue-barred. Section 4 of the Limitation Act1935 provides that no person shall make an entry or distress, or bring an action to recover any land or rent, but within 12 years next after the time at which the right to make such entry or distress, or to bring such action, shall have first accrued to some person through whom he claims; or if such right shall not have accrued to any person through whom he claims, then within 12 years next after the time at which the right to make such entry or distress, or to bring such action, shall have first accrued to the person making or bringing the same.

77 In the present case, the acts and omissions complained of occurred in July 1985. It was at that moment in time, when the transfer creating the subject easement was registered, that a cause of action based upon the irregularities or alleged wrongdoing now complained of accrued. The present proceedings were not commenced until 1999, that is to say, they were not commenced within the period of 12 years specified by the Limitation Act. Accordingly, on this ground also, this aspect of the claim fails.

The Application for Extinguishment

78 I must now turn to the application for relief pursuant to s 129C of the Transfer of Land Act. Before examining the statutory provisions, it will be useful to look at various principles emerging from the decided cases.

79 An easement is essentially the right to make use of another's property, as in the case of a right of way to pass over another's land. It follows from this that there must be a dominant tenement, the owner of which is entitled to the benefit of the easement, and a servient tenement that is subjected to the burden of the easement. The corollary is that the owners of the dominant and servient tenements must be different persons. Nonetheless, as Evershed MR confirmed in Re Ellenborough Park [1956] 1 Ch 131 at 172, a right of way may be a valid easement even though it is capable of benefiting any passer-by, wholly unconnected with the dominant tenement, who chooses to use it as a short cut. Any individual or corporate body can create an easement to the extent that the grant of such an interest in property is consistent with the relevant owner's power of alienation.

(Page 29)

80 At common law, the meaning and effect of an easement conferred by a deed of grant is determined by reference to the language of the grant, construed in the light of the circumstances existing at the time of the execution of the deed. Evidence is admissible to establish the nature of those circumstances. An easement over Torrens System land is not created by deed. But a document registered under that system, such as the transfer in the present case, is deemed to be a deed. The principles of construction that have been adopted in respect of the grant of an easement at common law, therefore, are equally applicable to the grant of an easement in respect of land under the Transfer of Land Act.

81 In Gallagher v Rainbow (1994) 179 CLR 624 at 63, having referred to these general principles, McHugh J went on to observe, in the course of a dissenting judgment, that in construing the grant of an easement - whether at common law or under the Torrens System - the court will consider the locus in quo over which the way is granted, the nature of the terminus ad quem and the purpose for which the way is used. In the absence of a contrary indication, the grant is construed against the grantor. Nonetheless, the court will not construe the grant in a way that would enable an easement to be used in a manner that goes beyond the use contemplated by the parties at the time of the grant. The reason for this rule is that every easement is a restriction on the property rights of the owner of the servient tenement. Speaking generally, where there is an alteration to the use of the dominant tenement, the grantee has no right to use the easement for any new and additional purpose of the dominant tenement.

82 Harris v Flower (1904) 74 LJ Ch 127 exemplifies this latter point. In that case, the defendant having a right of way over the plaintiff's land, certain land coloured pink on a plan, and being also the owner of certain adjoining land coloured white, had by his own acts completely landlocked the white land so that the only access thereto was now over the pink land, and had built a factory partly on the pink and partly on the white land. The factory was all one building and a substantial part of it was on the pink land. The only access to it from the highway was by means of the right of way. The plaintiff brought an action claiming that the defendants had lost their right of way by abandonment, and also claiming an injunction to restrain the defendants from using the right of way as a means of access to the factory and related premises. The Court of Appeal held that the acts of the defendant did not amount to an abandonment or extinction of the right of way, but that the proposed user for the purposes of the part of the building erected on the white land was in excess of the grant.

(Page 30)

83 Vaughan Williams LJ said that notwithstanding the fact that the buildings on the white and on the pink lands are intended to be used jointly for one purpose, yet that consideration does not exclude the inference that the user of the way is for the purpose of giving access to land to which the right of way is not appurtenant. A right of way of way of this sort restricts the owner of the dominant tenement to the legitimate exercise of his right and the court would not allow that which was in its nature a burden on the owner of the servient tenement to be increased without his consent and beyond the terms of the grant. The object of the scheme was to include the profitable user of the white land as well as of the pink, and, in his view, the access was to be used for the very purpose of enabling the white land to be used profitably as well as the pink. In those circumstances, the court ought to restrain the proposed user. He approved the making of a declaratory order that the defendant was not entitled to use the land of the plaintiff as a passage or way to or from the piece of land at the rear of the premises in dispute.

84 Romer LJ came to the same conclusion. He said that if a right of way be granted for the enjoyment of Close A, the grantee, because he owns or acquires Close B, cannot use the way in substance for passing over Close A to Close B. Cozens-Hardy LJ considered that a right of way was for all purposes with reference to the dominant tenement. The question in the case before him was whether the defendant had attempted to enlarge the area of the dominant tenement. In his view, it was impossible to use the right of way so as to enlarge the dominant tenement in the manner in dispute.

85 More recently, the Court of Appeal in Jelbert v Davis [1968] 1WLR 589 held that the conversion of the dominant tenement from agricultural use to a caravan and camping park for 200 units would result in an unreasonable increase in the burden of the servient tenement. According to Lord Denning MR at 595 a grant of easement does not authorise an unlimited use of the way. The true proposition was that no-one of those entitled to the right of way must use it to an extent which is beyond anything which was contemplated at the time of the grant.

86 Bradbrook & Neave: Easements & Restrictive Covenants in Australia (2nd ed) at par 6.22 contains a review of the decided cases bearing upon this point. The authors note that two lines of authority exist, one to the effect that changed purpose of user will be denied if the result is to increase substantially the burden on the servient tenement, the other, the changed purpose of user, will always be permitted regardless of any increased burden. The authors complete their survey by submitting that

(Page 31)

the balance of authorities strongly suggest that the former proposition is correct, that is to say, changed purpose of user will not be permitted if the result is to increase substantially the burden on the servient tenement. If it were otherwise, the dominant owner would be able by his own act to impose a greater burden than formerly on the servient tenement.

87 One must also take account of the views of the majority of the High Court in Gallagher v Rainbow (supra). In that case, the owners of four lots on a plan of subdivision gained access to a public street via a private roadway formed from strips of land belonging to each of the four lots. Reciprocal easements over each portion of the roadway were given and taken by the owners of the lots. The right of way was expressed to be for the benefit of the dominant tenement "or any part thereof". The term "grantee" included transferees and assigns as well as the occupier or occupiers for the time being of the dominant tenement. The owners of two of the four lots subdivided their lots into three lots each. The plaintiff sought an injunction restraining the use of the easement for the purpose of carrying out the subdivision. A majority of the court held that the relief sought should be refused upon the basis that the benefit of the easements attached to the dominant tenements in their subdivided form. The majority said that an easement is attached to the dominant land for the benefit of that land. To the extent that any part of the dominant land may benefit from the easement, the easement will be enforceable for the benefit of that part, unless the easement, on its proper construction, benefits the dominant land only in its original form. The majority noted that the extent to which use of the right of way by purchasers of the dominant tenement in its subdivided form might be intensified to such a degree as to be restrainable as exceeding the subject-matter of the grant was not a matter which fell to be determined. I have already noted that McHugh J presented a dissenting judgment in which he concluded that not only did the terms of the grant fail to indicate that the parties contemplated that the roadway might be used by the owners of subdivided portions of a lot, but the surrounding circumstances also gave no support to that contention. The reciprocal access easement rights were carefully drafted in identical terms and thus "the assumption that the parties to a grant of easement contemplated that the dominant tenement might be subdivided cannot be made in this case."

88 I must also take account of the decision of Young J of the Supreme Court of New South Wales in Finlayson v Campbell (1997) NSW Conv R 55-825. In that case, the plaintiff sought to restrain interference with a right of way in circumstances where various improvements had gradually intruded upon and interfered with exercise of the right of way. Young J

(Page 32)

said that one must work out what was in contemplation at the time of the grant "though perhaps the cases suggest that one must objectively attribute to the grantor more than he or she may actually have had in contemplation". He went on to say that the test of working out what was in contemplation at the time of the grant has not been universally applied, but it seemed to be the test that was applied more than any other. He noted also that one ordinarily construes the grant of an easement as the date of its creation and if there is any ambiguity, one looks at the physical attributes of the land as at that date to see what sort of right of carriageway could have been intended. He went on to say this at 56,455:

"Thus one looks at the grant and the rights which are expressed or implied in the grant and those are the rights which the dominant owner has and no more. The dominant owner cannot increase his position by so building on his dominant tenement such that an additional burden is thrown on to the servient land unless that extra burden was one which is within the express or implicit terms of the grant."

89 A review of these cases suggests that although some change in the degree of user is permissible, provided it does not go beyond anything contemplated by the parties at the time the easement was created, it will not be permissible if the result is to increase substantially the burden upon the servient tenement. The decided cases also suggest that one must begin by construing the terms of the grant, but ambiguities can be resolved by reference to the circumstances prevailing at the time, in which respect the physical features of the land in question, and the purpose to be served by the right of way, will prove to be important. It seems that if a question arises as to whether some particular user goes beyond the use contemplated by the parties and is exceeding the terms of the grant, a distinction must be drawn between a changed user arising from some alteration to circumstances taking place upon the dominant tenement, as in Gallagher v Rainbow (supra), and a changed user arising from alterations to the dominant tenement conducted in conjunction with alterations to an adjoining piece of land, as in Harris v Flower (supra).

90 This brings me to s 129C of the Transfer of Land Act, for this provision allows for orders to be made with a view to ameliorating the effect of changed circumstances. Section 129C(1) is in these terms:

"(1) Subject to subsection (1a), where land under this Act is subject to an easement or to any restriction arising under covenant or otherwise as to the user thereof or the right of

(Page 33)

building thereon, the court or a Judge may from time to time on the application of any person interested in the land burdened or benefited, or any local government or public authority benefited, by the easement or restriction, by order wholly or partially extinguish, discharge or modify the easement or restriction upon being satisfied -

(a) that by reason of any change in the user of any land to which the easement or the benefit of the restriction is annexed, or of changes in the character of the property or the neighbourhood or other circumstances of the case which the court or a Judge may deem material the easement or restriction ought to be deemed to have been abandoned or to be obsolete or that the continued existence thereof would impede the reasonable user of the land without securing practical benefits to other persons or (as the case may be) would unless modified so impede such user; or

(b) that the persons of full age and capacity for the time being or from time to time entitled to the easement or to the benefit of the restriction whether in respect of estates in fee simple of any lesser estates or interests in the land to which the easement or the benefit of the restriction is annexed have agreed to the same being wholly or partially extinguished, discharged or modified or by their acts or omissions may reasonably be considered to have abandoned the easement or to have waived the benefit of the restriction wholly or in part; or

(c) that the proposed extinguishment, discharge or modification will not substantially injure the persons entitled to the easement or to the benefit of the restriction."

91 Section 129C(3)(aa) provides that the court or a Judge may, on the application of any person interested, make an order declaring what is the nature and extent of the easement and whether the same is enforceable and if so by whom; or (c) whether or not any easement or any restrictive covenant ought to be removed as an encumbrance from the Register. By

(Page 34)

s 129C(5), an order shall when entered in the Register be binding on all then entitled or thereafter becoming entitled to the easement and whether such persons are parties to the proceedings or have been served with notice or not. By s 129C(8), the costs of and incidental to an application made pursuant to the provisions of this section to the court or a Judge shall not be awarded against the defendant or respondent in any event.

92 The decided cases provide a useful point of reference in determining the effect of these provisions. It is clear from the decided cases that the onus of proving an allegation of abandonment or that the easement should be deemed to be obsolete rests upon the party making such an allegation. Barrett v RSE Holdings Pty Ltd [1999] WASC 128 at par 25. It is apparent, however, that the court will be slow to arrive at such a conclusion. In Smith v Australian Real Estate & Investment Co Ltd [1964] WAR 163 Negus J had this to say at 167:

"Speaking generally, I feel sure parliament did not, when enacting s 129C intend the court to allow what is in effect the expropriation of private property, namely, the right of a landowner to the benefit of a restrictive covenant, without compensation, unless completely satisfied that the benefit is valueless to such owner from a practical standpoint and does not secure him any practical benefit."

93 This approach is reflected in the decision of the High Court in Treweeke v 36 Wolseley Road Pty Ltd (1973) 128 CLR 274. In that case, a piece of land with a water frontage to Double Bay in Sydney was divided into two lots, being Lot B with and Lot A without, a waterfrontage. The transfer of Lot A contained a grant of a right of way to pass over Lot B to Double Bay. The right of way was noted on each certificate of title. At all times, the right of way had been impassable by reason of vertical rock faces, and, since 1928, by reason of an impenetrable bamboo plantation. Some years before the court case, the owner of Lot B installed a swimming pool across the right of way near the waterfront and later and iron fence across the way. At no time had the owners or occupiers of Lot A used the entire right of way. In 1971 the owner of Lot B sought a declaration that the right of way had been abandoned.

94 A majority of the High Court in Treweeke (supra) held that the non-user of the right of way and the other acts and omissions of the owner of Lot A did not require the inference of abandonment of the right of way. In the course of a dissenting judgment, Walsh J noted that,

(Page 35)

notwithstanding the conclusive effect of the register book as a central feature of the Torrens System, a provision such as s 129C clearly contemplates that orders will be made which affect rights which were vested in the registered proprietor, according to the state of the register, at and after the time when he acquired his title to the dominant tenement. It is the function of the court to give effect to the intention which it finds to be expressed in the provision, notwithstanding that it may operate as a limitation upon the conclusiveness of the register. In order to succeed, the applicant for relief was obliged to satisfy the court that the criteria reflected in the statutory provision had been met but, in that event, the court retained a discretion to make or to refuse to make an order. In his view, the mere circumstance that the existence of an easement was noted on the register at the time when the title passed to a new owner would not furnish a reason for refusing, as a matter of discretion, to make orders of the kind allowed for by the statutory provision.

95 I have already noted that, in certain circumstances, alterations to the dominant tenement which increase the burden imposed upon the servient tenement may amount to a nuisance and enable the owners of the servient tenement to restrain the owners of the dominant tenement from using a right of way in an excessive manner. Can reasoning of this kind, by analogy, be relied on by the owner of a servient tenement in seeking to obtain relief pursuant to s 129C? Treweeke's case (supra) concerned an alleged failure to use the right of way in question. In the present case, there is no suggestion that the right of way has not been used. Is there some other basis whereby the owners of Corinne Court can bring themselves within the statutory provision?

96 It is true that the use of words such as "abandonment" or "obsolete" conjures up an image of a blocked or over-grown pathway or of an avenue that has gradually fallen into disrepair and gone out of use. Against this, however, one can present the example used by Gale on Easements (15th ed) 382. The learned author observed, in the context of excessive user that a person who has a right to send clean water through a drain, who is now sending down foul water, may be thought to have abandoned the entitlement to send down clean water, even though the drain is constantly in use. See Taylor v Corporation of St Helens (1877) 6 Ch D 264. In other words, in this hypothetical case, the avenue is well used, but can it be said that the practice of using it for the disposal of clean water has been abandoned or become obsolete?

97 In Harris v Flower (supra), notwithstanding that the Court of Appeal was prepared to restrain the excessive user, the Court of Appeal was not

(Page 36)

prepared to hold that the acts of the defendant in using the right of way to facilitate the development of adjoining land, amounted to any abandonment of the grant. On the other hand, in C Hunton Ltd v Swire [1969] NZLR 232, in dealing with an issue arising under a similar statutory provision, Wilson J found that a right of way forming part of the original town section of Christchurch had been fenced off by owners of the lots contiguous to the servient tenement so that exercise of the right of way had become physically impossible. He held that the rights of way were in fact obsolete and should be deemed so, as "this is not a case when the actual existence of a fact precludes from deeming it to exist." He then went on to say this at 234 to 235:

"'Obsolete' usually means 'gone out of use', 'discarded' or 'out of date' but in this context I think it means 'no longer relevant to the circumstances presently obtaining'. I also think that the points of time which require to be considered in order to ascertain whether or not there has been a change of user, and the extent of any such change, are the time when the easement was created and the time when the application for its extinguishment comes before the court. For that reason I do not think it proper under this head to have regard to future user of the dominant tenements, however probable or even the projected use of some of them referred to in the affidavit of the secretary manager of the Education Board. My duty as I see it, is to compare the existing use of the dominant tenements with the use contemplated when the rights of way were granted nearly 110 years ago."

98 He then went on to say that the terms of the grant were consistent with either residential or commercial (including industrial) user of the dominant tenements, but the exiguous size of the individual lots seem to point strongly towards contemplated commercial user. He noted also that the establishment of the ground for relief gave the court a discretionary power to extinguish the easement. However, in exercising such a discretion, it was necessary to bear in mind that the section does not enable the court to direct applicants to pay compensation to those in whom easements are vested. For this reason, the court will generally hesitate to make an order the effect of which would be to expropriate valuable rights.

99 This view of the matter was echoed by Young J of the Supreme Court of New South Wales in Finlayson v Campbell (supra) while addressing the question of whether (in the language of the statutory

(Page 37)

provision) the continued existence of the easement would impede the reasonable user of the land to which it is annexed without securing practical benefits or would unless modified impede such user. Young J suggested that the mere fact that the person entitled to the right of way comes to court and says that the right of way is of a benefit to him and he is prepared to spend money on counsel defending his right, is itself good evidence that the right is of some practical benefit.

100 I am also obliged to take account of Kort Pty Ltd v Shaw [1983] WAR 113. In that case, a developer contracted to purchase a block of land in an established residential area which was subject to a covenant restricting development to a single residence. The developer sought removal or modification of the covenant so as to allow an amalgamation of two blocks and the construction of five residential units thereon, principally upon the basis that the development was permitted by the local town planning scheme and had been approved by the local council. In dismissing the applicant, Burt CJ held that the jurisdiction conferred under s 129C is not conditioned by anything to be found in a town planning scheme. Accordingly, a restrictive covenant may operate to frustrate the object sought to be obtained by a town planning scheme. The covenant in the instant case was thought to secure practical benefits to residents living nearby. In the course of his judgment, Burt CJ noted that unless a plaintiff can bring himself within one or other of the subsections of s 129C, the court has no power to make the order sought. If the plaintiff succeeds in bringing himself within the requirements of the statutory provision, then the making of the order sought is discretionary. See Re Ghey & Galton's Application [1957] 2 QB 650; Re Markin & Roberts [1966] VR 494.

101 In Ex parte Proprietors of Averil Court Building Units [1983] Qd R 66 Matthews J held that a statutory provision similar to s 129C(1)(c) can be applied in circumstances not available in respect of the preceding subsection. In other words, even though an applicant for relief may not be able to satisfy the court that an easement should be deemed to have been abandoned or to be obsolete, the circumstances may justify the making of an order for relief upon the basis, pursuant to s 129C(1)(c) that the proposed extinguishment, discharge or modification will not substantially injure the persons entitled to the easement.

102 In this context, there is a useful passage to be found in Bradbrook & Neave: Easements and Restrictive Covenants in Australia (2nd ed) at par 19.110. It is not sufficient to show that the covenant or easement "impedes reasonable user", it must also be shown that user is impeded

(Page 38)

without securing practical benefits to the persons with the benefit of the covenant or easement. In other words, the main purpose of the section is to ensure the preservation of property rights, not to facilitate the use of land in the best interests of the community. In Barrett v RSE Holdings Pty Ltd (supra) Parker J noted that "injury" connotes injury which has substance in the sense of real or appreciable injury. The kind of injury contemplated is injury to the relevant person in relation to his ownership of or interest in the land benefited: Webster v Bradac (1993) 5 BPR 12032 at 12035.

103 It is against this background that I now turn to the circumstances of the present case.

104 It follows from earlier discussion concerning the registration issue that there is a degree of doubt as to who were the owners of Corinne Court as at 3 July 1985 and, further, and in any event, a degree of difficulty in ascertaining what exactly was contemplated by a grantor comprised of a group of owners who can only act pursuant to a unanimous resolution representing the collective will of the owners. In these circumstances, I am obliged to look at the circumstances objectively and rely upon the language of the deed of easement. It is apparent from Harris v Flower (supra) and from the principles enunciated in Gallagher v Rainbow (supra) that in construing the grant of the easement one must begin by looking at the relevant instrument and, in the event of any ambiguity, to construe the language used to effect the grant in the light of the circumstances existing at the time the grant was made.

105 I have already noted that the court will not construe the grant in a way that would enable the easement to be used in a manner that goes beyond the use contemplated at the time of the grant. In the present case, putting the registration issue entirely to one side, the evidence, viewed objectively, shows that Corinne Court on Lot 18, which was destined to be the servient tenement, was intended to be rendered attractive for residential purposes. There is no reason to suppose that any burden was to be imposed beyond the liability imposed by the express words of the deed. It is true that prior to 3 July 1985, Mr Norton and his sister were the owners of Lot 18 and, through the agency of their family company Premier Nominees Pty Ltd, were also effectively the owners of Lot 19 and Lot 20. They were giving thought to improving Lots 19 and 20 for commercial purposes, but the fact remains that as at 3 July 1985 their plans had not crystallised. I must also keep steadily in mind that the carriageway on Lot 18, which was destined to become the right of way, was essentially the main approach or entrance to Corinne Court, at least

(Page 39)

for vehicles, and thus, it seems unlikely that the grantor of the easement had in mind that any excessive use of the right of way would be permitted.

106 It was open to Premier Nominees Pty Ltd in its role as grantor to arrange for the terms of the easement to be expressed in terms sufficiently wide to embrace activities taking place not only upon Lot 19 as the dominant tenement identified expressly by the grant, but also Lot 20, but it did not do so. The court is left with the language used in the deed and the grant of a right of way in favour of the owners and occupiers of Lot 19 and their successors in title and their respective servants, agents, invitees and licensees to use the right of way for all purposes connected with "the use and enjoyment of those lands", that is to say, the lands comprising Lot 19.

107 Prima facie, the grant of easement was intended to facilitate the use and enjoyment of the office premises on Lot 19, but in a limited manner, namely, by continuing to use the Premier Film Centre thoroughfare as a thoroughfare for vehicles and pedestrians to obtain access to the single-storey office block on Lot 19 and the shed on Lot 20. In other words, the grant allowed for a continuance of the existing use whereby vehicles and pedestrians could obtain access to the office premises on Lot 19, either from Stirling Street or Bulwer Street, via pavement crossovers at each point of entry situated close to the premises, and without any allowance for the possibility that either vehicles or pedestrians would enter upon the right of way directly from Lot 20.

108 If there is thought to be any ambiguity as to the extent of the grant, then the surrounding circumstances as at 3 July 1985 suggest that, partly for the reasons I have already mentioned, and partly for the reasons I am about to touch upon, the grant should be construed as being intended to facilitate commercial activities taking place upon Lot 19 only as the dominant tenement.

109 At that time as to vehicles, it was physically impossible to enter the right of way from Lot 20 owing to the presence of the shed depicted on the Pasotti plan and the presence of a fence along the boundary of Lots 19 and 20. The evidence strongly suggests that the use being made of the Premier Film Centre thoroughfare, and thus of the carriageway on Lot 18 (which was destined to become the right of way), was of a comparatively minor nature. Carriers used the thoroughfare at random intervals for the purpose of deliveries and some pedestrians having business in the Premier Film Centre would use the right of way in order to reach the rear entrance of the building at the north-eastern corner. The evidence clearly shows

(Page 40)

that there was no widespread usage of the right of way as a result of vehicles being parked in proximity to the office building on Lot 19.

110 I digress briefly to draw attention to another aspect of the subject land as at 3 July 1985. At that time, the laneway on Lot 19 could be quarantined from use outside office hours by the presence of the galvanised iron gates, these being the gates I have called the northern and southern gates established at each end of the laneway. The evidence is quite clear, and I so find, that as at mid-1985 and thereafter until the redevelopment of Lot 19 took place in 1997, these gates were closed at the end of normal business hours and were therefore closed at weekends. This meant that passers-by on weekends and at night, would not be able to use the Premier Film Centre thoroughfare as a short cut or as an alternative to the footpath outside the office building. Against this background, a question arises as to whether the language of the deed should be construed so as to confine the use of the right of way to user by the owner of Lot 18 by its tenants or those coming to the premises during office hours?

111 The decided cases suggest that I am not able to make such a finding. The grant conferred by the deed is broadly expressed, albeit apparently confined to those using Lot 19. The gates cannot be regarded as a permanent feature of the topography. They were principally there to suit the convenience of the landlord and as a way of providing security after hours. They could be easily removed if the owner of Lot 19 so decided. The decided cases, especially Treweeke's case (supra) indicate that in construing the grant one cannot allow the presence of a barrier to override the explicit language of the instrument. Further, the cases suggest that one must allow for some change of use in the future, especially where commercial premises are involved. Further, it seems from the dictum of Evershed MR in Re Ellenborough Park (supra) that a right of way may be a valid easement even though it is capable of benefiting a passer-by. Accordingly, I am compelled to hold in regard to this aspect of the matter, that the right of way is not limited to office hours.

112 This brings me back to the issue I raised initially, being an issue of the kind adverted to by s 129C(3)(aa) of the Transfer of Land Act: What is the nature and extent of the easement in the present case? It is only after that issue has been resolved that a determination can be made as to whether, having regard to intervening changes of the kind contemplated by s 129C, The Owners of Corinne Court, as the plaintiff in the present proceedings, are entitled to relief.

(Page 41)

113 In my view, the language of the deed is consistent with and seems to reflect the circumstances prevailing as at 3 July 1985. The deed of grant in its terms allows for pedestrians to obtain access to the building via the rear entrance and for vehicles to service the office premises on Lot 19 by using the right of way. It seems to me, however, that where, as happens at the present day, vehicles are being attracted to the car park established substantially on Lot 20, albeit having some association with businesses being conducted on Lot 19, a user of the right of way for that purpose exceeds the intended use. The movement of vehicles to and from the car park established substantially on Lot 20 marks a significant departure from what was envisaged by the language of the deed, having regard to the circumstances existing at the time the easement was granted. I find support for this conclusion in a number of the decided cases mentioned earlier, including Harris v Flower (supra) and Jelbert v Davis (supra). Gallagher v Rainbow (supra) is not directly applicable to the circumstances of the present case because that case was essentially concerned with use of a right of way in circumstances where the subdivisional activity, and potential increase in usage, was taking place entirely upon the dominant tenement.

114 I also find support for the conclusion I have reach in the precept mentioned earlier that in cases of this kind, if any ambiguity in the language of the grant is thought to exist, the court will consider, amongst other factors existing at the time the easement was created, the nature of the terminus ad quem. In the present case, as appears from the Pasotti plan and Martin design, the right of way terminates at the boundary of Lot 18 and Lot 20. Superficially, that might suggest to a layman that the deed was allowing for the possibility that vehicles and pedestrians might move directly onto Lot 20. In law, however, at that time, under the provisions of the Dividing Fences Act 1961, it would have been open to the owner of Lot 18 - the owners of Corinne Court - to insist, as in effect they have now insisted, that a dividing fence be erected on the boundary to prevent direct access to the right of way from Lot 20, notwithstanding that Lots 19 and 20 now enjoy a common ownership and are apparently destined to be joined as Lot 100 on a new plan. It would be inconsistent with the legal position I have just described, if this point of termination, presently marked by a brick wall, could be bypassed by giving a broad interpretation to the deed. This view of the matter assists me in my finding that the extent of the right of way is limited to pedestrians and vehicles entering the right of way from Stirling Street or from a strip of land corresponding to the former laneway on Lot 19. Vehicles moving to or from the parking area substantially on Lot 20 by travelling along the

(Page 42)

right of way over Lot 18, in my view, are using the right of way in a manner which is not permissible and might be found to constitute a nuisance.

115 A finding of this kind may pave the way to an application for a restraining order on the grounds of excessive user. But that is not the issue presently before me. The plaintiff has applied for relief by way of extinguishment of the easement pursuant to s 129C of the Transfer of Land Act. Accordingly, I must now turn my attention to each of the relevant criteria in turn. It follows from earlier discussion, however, that in doing so I must proceed carefully before making any order that might be regarded as an expropriation without compensation of proprietary rights that were intended to be vested in the owner of Lot 19 and its successors in title - which includes the defendant company - by the deed of easement.

116 When I turn to the considerations mentioned in s 129C(1)(a), I am not satisfied upon the evidence that the easement ought to be deemed to have been abandoned or to be obsolete. Pedestrians having business at the office premises on Lot 19, either because they are tenants or the clients or customers of tenants, are still able and apparently accustomed to approach the rear entrance of the building by making use of the right of way. For those entering the right of way from Stirling Street, this is certainly consistent with the language of the deed of grant and the circumstances prevailing as at 3 July 1985. For those approaching the rear entrance from Bulwer Street, this is broadly consistent with the former use. In some circumstances the term "obsolete" might be employed to mean "no longer relevant to the circumstances presently obtaining" but, as far as pedestrians are concerned, the factors I have mentioned suggest that, even within that formulation, the right of way has not been abandoned or become obsolete. Further, I am not persuaded that use of the right of way, at least in that manner, does not continue to secure practical benefits for the owner of Lot 19 as the dominant tenement.

117 When one turns to the use of vehicles, slightly different considerations apply. It is true that what was formerly the laneway on Lot 19 has now been dispensed with. Not only has the southern gate been removed, but a wall has been built in its place, with the result that access from Bulwer Street at that point is no longer possible. The establishment of parking bays in what was formerly the laneway on Lot 19 means that, effectively, the Premier Film Centre thoroughfare has ceased to exist. One might therefore argue, by analogy, that as the right of way formed

(Page 43)

part of the Premier Film Centre thoroughfare, it has been abandoned or become obsolete also as a route for vehicles.

118 On balance, however, I am not persuaded to this point of view. Service vehicles can approach the rear entrance of the defendant's office building on Lot 19 by entering the right of way from Stirling Street. The wall that has now replaced the southern gate on Bulwer Street could be dispensed with or altered so as to allow some use of the right of way as a means of access to the building on Lot 19 comparable to the access previously being provided by the Premier Film Centre thoroughfare. The decision of this Court in Kort's case (supra) indicates that it is not fatal to the continued existence of an easement that the usage of the right of way in question does not conform to planning approvals or town planning schemes. It is very difficult to suggest that the right of way does not secure some practical benefits to the owner of Lot 19. Accordingly, I am not satisfied that the right of way should be wholly extinguished in the manner contended for by counsel for the plaintiff.

119 When I turn to s 129C(1)(b), as an avenue of relief in the alternative, one notices immediately, after a review of the evidence, that there has been no agreement to any extinguishment of the easement by the party entitled or a waiver of rights. In my view, the defendant's proposal of 13 March to erect a gate to be closed after business hours cannot be regarded as a waiver of rights. It was simply an offer of compromise. It follows from my earlier observations that the present owner cannot be thought to have abandoned the easement.

120 Different considerations apply when one turns to s 129C(1)(c). It follows from my earlier observations that entire extinguishment will injure the defendant company as the person entitled to the easement because such an extinguishment would effect an expropriation of what should be regarded, on my finding, as a current proprietary right.

121 A further question then arises, however, as to whether, in the circumstances of the present case, there is a basis for effecting a modification of the easement. The decided cases suggest that, like extinguishment, a modification can only be effected if the necessary conditions precedent to the exercise of the power allowed by the statutory provision have been made out. In regard to an application based upon s 129C(1)(c) I have to be satisfied that any modification will not substantially injure the person entitled to the easement. In the present case, the bone of contention is the use of the right of way by tenants and members of the public in moving to and from the parking area

(Page 44)

substantially on Lot 20. I have found that a user of this kind goes beyond the ambit of the grant of easement, having regard to the terms of the grant and the user contemplated at the time it was created. Accordingly, if an order were made restricting such a user, then, on this view of the matter, such an order could not be said to injure the defendant as the party entitled to the subject easement, within the meaning of s 129C(1)(c), because the excessive use complained of is not a use that was allowed to the defendant in the first place.

122 There are two difficulties to be confronted in making any such order. First, can such an order be described as a modification of the easement when in truth it is simply defining the limits of the easement, properly construed? Second, in circumstances where the plaintiff has applied for an order that the easement be wholly extinguished, is it open to the court to modify the easement?

123 In my view, in the circumstances of the present case, both these difficulties stand in the way of my making any order pursuant to s 129C(1)(c) which purports to modify the easement so as to restrict the excessive user of the right of way that I have identified in earlier discussion. Modification is not really appropriate. An application for extinguishment where changes have occurred inevitably requires, and thus imports, that a determination be made as to the limits of the easement in question. It is only when the limits have been determined that findings can be made as to the need for extinguishment or modification. If the limits of the easement, properly construed, have been exceeded, then there is no need for modification. Many disputes will ultimately be resolved by a ruling or clear understanding as to what are the rights of the interested parties. Does the statutory provision allow for such a ruling?

124 This brings me to s 129C(3)(aa) whereby the court may on the application of any interested person make an order declaring what is the nature and extent of the easement and whether the same is enforceable and, if so, by whom. The provision was introduced by an amendment to s 129C(1)(c) effected in 1972 as part of a series of amendments apparently designed to give the statutory provision a broader application, allowing for both entire and partial extinguishment. The plaintiff in the present case did not apply expressly for declaratory relief, but the introduction of s 129C(3)(aa) suggests that the new provision is intended to allow to the parties another means of resolving their differences by obtaining a ruling as to what are the respective rights and liabilities of the parties to a dispute. Order 18 r 16 of the Rules of the Supreme Court

(Page 45)

provides that the court may make binding declarations of right whether or not any consequential relief is or could be claimed.

125 I must also take account of s 24(7) of the Supreme Court Act 1935 which provides that the court, in the exercise of the jurisdiction vested in it by the Supreme Court Act, in every cause or matter pending before it, shall have power to grant, and shall grant, either absolutely or on such reasonable terms and conditions as shall seem just, all such remedies whatsoever as any of the parties thereto may appear to be entitled to in respect of any and every legal or equitable claim properly brought forward by them in such cause or matter; so that, as far as possible, all matters so in controversy between the parties may be completely and finally determined, and all multiplicity of legal proceedings concerning any of such matters avoided.

126 It is apparent from my earlier observations that, in the circumstances of the present case, I consider that the right of way as defined by the terms of the deed of easement does not extend to vehicles passing or repassing over the right of way in the course of moving to and from the car park established substantially on Lot 20 and that a user of that kind should be regarded as excessive. This issue arose in the context of a justiciable controversy brought before the court by the plaintiff's application for extinguishment as a consequence of which both parties had an opportunity to present evidence and were inevitably obliged to make submissions concerning the meaning and limits of the original grant. Accordingly, I consider that a declaration should be made reflecting the view I have expressed with a view to resolving the controversy.

127 I will hear the parties as to the precise terms of the order to be made. Subject to further submissions in that regard, there will be a declaration in favour of the plaintiff that the grant of easement the subject of transfer D59531 conferring a right to pass and repass over the designated right of way for all purposes connected with the use and enjoyment of Lot 19 does not permit vehicles to use the right of way as a means of obtaining access to or as a means of moving to and from any parking area established on the land known or formerly known as Lot 20.

(Page46)


(Page47)