Thomas v Symons - [2013] NSWSC 490

Supreme Court

New South Wales

Medium Neutral Citation: Thomas v Symons [2013] NSWSC 490
Hearing dates: 4, 5, 11 and 30 April 2013
Decision date: 08 May 2013
Jurisdiction: Equity Division
Before: Windeyer AJ
Decision:
Refer to paras [38] and [39] of judgment

Catchwords: REAL PROPERTY - easements - easement by estoppel - appropriate relief to give effect to estoppel - claim for easement under s 88K of the Conveyancing Act 1919 - requirement of reasonable necessity - meaning of reasonable use and development - construction of s 6 of the Roads Act 1993
Legislation Cited: Conveyancing Act 1919
Roads Act 1993
Cases Cited: Duic v Duic [2013] NSWCA 42
Waddell v Waddell [2012] NSWCA 214
Walsh v Walsh [2012] NSWCA 57
Evans v Evans [2011] NSWCA 92
Delaforce v Simpson-Cook [2010] NSWCA 84 Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7; (1988) 164 CLR 387
Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2012] NSWCA 445
Rainbowforce Pty Ltd v Skyton Holdings Ltd [2010] NSWLEC 2
117 York Street Pty Ltd v Proprietors of Strata Plan 16123 (1998) 43 NSWLR 504
Blulock Pty Ltd v Majic [2001] NSWSC 1063
Category: Principal judgment
Parties: Edna Jean Thomas (Plaintiff)
Donald Sidney Symons (Defendant)
Representation: Counsel:
M J Heath (Plaintiff)
G Waugh (Defendant)
Solicitors:
The Norton Law Group (Plaintiff)
RMB Lawyers (Defendant)

File Number(s): 2011/322267

Judgment

Outline

HIS HONOUR: The plaintiff and defendant are brother and sister. They have owned and lived on adjoining properties for 66 years. During this time the plaintiff has had vehicular and pedestrian access to her property over part of the land of the defendant. The defendant wishes to sell his property and has stated that access will be denied to the plaintiff in future. The plaintiff claims the defendant is estopped from denying she has a right of way. In the alternative she seeks the imposition of an easement by the Court pursuant to s 88K of the Conveyancing Act 1919. Other relief sought in the statement of claim was not pursued.

Uncontested facts

The plaintiff is aged 88 and the defendant 90. The plaintiff is the owner of Lot 9 in Deposited Plan No. 10200. The defendant is the owner of lot 25 in the same deposited plan.

In 1944 Mrs Thomas and her husband, who has since died, had purchased a block of land being lot 8 Beattie Avenue, Bulli for about £50. They intended to build a home there. The brother of Mr Thomas owned the next door land and intended to build a shop on his land.

In 1947 the defendant, Mr Symons, was a fruiterer. He owned a truck, drove from Wollongong to the Sydney Markets to purchase fruit and vegetables and then returned to the Bulli or Wollongong district to deliver orders and otherwise sell the produce.

In early 1947 Mr Symons found out four blocks of land in Bulli were available for purchase from the Official Receiver in Bankruptcy as trustee of a bankrupt estate.

These…

Grounds of appeal

[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.

Continue reading Thomas v Symons

Details

AGLC: Thomas v Symons [2013] NSWSC 490
Case: [2013] NSWSC 490
Decision Date: 08 May 2013

CaseChat Overview and Summary

The case of Thomas v Symons was heard in the Supreme Court of New South Wales. The dispute involved two parties, Thomas and Symons, who were neighbours with adjoining properties. The central issue was whether an easement by estoppel could be imposed on Symons’ property to allow Thomas to access a road that ran through Symons’ land. This access was necessary for the reasonable use and development of Thomas’ property, which was landlocked. The matter hinged on the interpretation of sections 88K of the Conveyancing Act 1919 and section 6 of the Roads Act 1993.

The court needed to determine whether the requirement of reasonable necessity under section 88K of the Conveyancing Act 1919 was satisfied in this case, and what constituted reasonable use and development of Thomas’ property. Additionally, the court had to consider how section 6 of the Roads Act 1993 applied to the situation, particularly whether it precluded the granting of an easement by estoppel over a public road. The court examined the legislative intent behind these provisions and the balance between private rights and public interests.

The court held that the reasonable necessity test under section 88K of the Conveyancing Act 1919 was met, as Thomas’ property was landlocked and access to the public road was essential for its reasonable use and development. The court determined that the easement by estoppel should be granted to provide Thomas with the necessary access. Regarding section 6 of the Roads Act 1993, the court found that it did not preclude the imposition of an easement by estoppel over a public road. The court concluded that the public interest in maintaining access to the road was not compromised by granting the easement.

The Supreme Court of New South Wales ordered that an easement by estoppel be imposed on Symons’ property, allowing Thomas to access the public road running through it. This easement was to be in accordance with the terms set out in the court's judgment, ensuring it was reasonable and necessary for the use and development of Thomas’ property.

Orders