Theunissen v Barter

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.