Mitchelmore JA at [1]; Kirk JA at [2]; Griffiths AJA at [161].
Decision:
In matter 2024/300418:
(1) The application for leave to appeal is dismissed.
(2) The respondent is to pay the applicants’ costs.
In matter 2024/139728:
(1) The respondent’s competency motion filed on 11 July 2024 is dismissed with costs.
(2) Appeal allowed.
(3) Orders 3, 8, 9 and 12 made by Richmond J on 15 April 2024 are set aside, and in lieu thereof:
(a) Declare that, upon its proper construction, the easement provided for in Transfer Granting Easement 939404 provides the owners of the dominant tenement with sole use and enjoyment of the rooftop area for the purposes of recreation and enjoyment and as a balcony, terrace or garden, subject to the limitations expressed in the easement.
(b) There be no order as to the costs of the proceedings.
(4) The respondent is to pay the appellants’ costs of the appeal.
Catchwords:
APPEALS — leave to appeal — whether leave required
LAND LAW — easements — construction of easements — general principles of construction — admissibility of information beyond the register — relevance of physical characteristics of land — range of physical characteristics which may be considered and as at what time, in light of Westfield Management Limited v Perpetual Trustee Company Limited (2007) 233 CLR 528; [2007] HCA 45 — whether account may be taken of physical characteristics revealed on building plans which can be accessed by the public
LAND LAW — easements — validity of easements — whether easement capable of forming subject matter of grant — whether the right conferred under an easement would amount to right of joint occupation or would substantially deprive the servient owner of proprietorship or legal possession — consideration of effect on both the servient tenement as a whole and the burdened area — consideration of effect on the rights, positive and negative, of the servient owner
Legislation Cited:
Conveyancing Act 1919 (NSW), ss 88B, 88K, 89
Government Information (Public Access) Act 2009 (NSW)
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Theunissen v Barter [2025] NSWCA 50
Case
[2025] NSWCA 50
Decision Date
CaseChat Overview and Summary
In *Theunissen v Barter*, the Court of Appeal of the Supreme Court of Queensland considered an application for leave to appeal and a related appeal concerning the proper construction and validity of an easement. The dispute centred on the extent of rights conferred by an easement over a rooftop area, with the parties disagreeing on whether the easement granted exclusive use and enjoyment or merely a right of shared access.
The court was required to determine two primary legal issues. Firstly, it had to consider the principles governing the construction of easements, particularly the admissibility of extrinsic evidence, including physical characteristics of the land and information contained in publicly accessible building plans, in light of High Court authority. Secondly, the court had to assess the validity of the easement, specifically whether the rights it purported to grant amounted to a right of joint occupation or would substantially deprive the servient owner of proprietorship or legal possession of the burdened area.
The court's reasoning involved an analysis of established principles for interpreting easements, drawing on *Westfield Management Limited v Perpetual Trustee Company Limited*. It held that the physical characteristics of the land, including those revealed in building plans accessible to the public, could be taken into account when construing the scope of an easement. Regarding validity, the court applied the test of whether the easement effectively amounted to joint occupation or substantially deprived the servient owner of their rights. The court found that the easement, properly construed, granted the dominant tenement owners sole use and enjoyment of the rooftop area for specified recreational purposes, subject to its express limitations, and that this did not amount to an invalid grant.
In matter 2024/300418, the application for leave to appeal was dismissed, with the respondent ordered to pay the applicants’ costs. In matter 2024/139728, the respondent's competency motion was dismissed with costs, the appeal was allowed, and specific orders made by the primary judge were set aside and replaced with a declaration as to the proper construction of the easement. The court also made no order as to the costs of the proceedings at first instance, but ordered the respondent to pay the appellants’ costs of the appeal.
Orders
Orders of the court
In matter 2024/300418:
(1) The application for leave to appeal is dismissed.
(2) The respondent is to pay the applicants’ costs.
In matter 2024/139728:
(1) The respondent’s competency motion filed on 11 July 2024 is dismissed with costs.
(2) Appeal allowed.
(3) Orders 3, 8, 9 and 12 made by Richmond J on 15 April 2024 are set aside, and in lieu thereof:
(a) Declare that, upon its proper construction, the easement provided for in Transfer Granting Easement 939404 provides the owners of the dominant tenement with sole use and enjoyment of the rooftop area for the purposes of recreation and enjoyment and as a balcony, terrace or garden, subject to the limitations expressed in the easement.
(b) There be no order as to the costs of the proceedings.
(4) The respondent is to pay the appellants’ costs of the appeal.