Tiller v Hawes - [2005] NSWSC 1232

CITATION:
Tiller & Anor v Hawes [2005] NSWSC 1232

HEARING DATE(S): 6-7-8 June 2005

JUDGMENT DATE :

2 December 2005

JUDGMENT OF:
Smart AJ at 1

DECISION:
See para 141

CATCHWORDS:
Easement and restrictive covenant - whether two should be taken together - effect of earlier proceedings, points not taken and undertakings given - construction of restrictive covenant having regard to surrounding circumstances - form of relief to be granted

LEGISLATION CITED:
Nil

CASES CITED:
Clos Farming Estates Pty Ltd (Rec. & Man Appt) v Easton & Anor [2001] NSWSC 525; [2002] NSWCA 389
Harada v Registrar of Titles [1981] VR 743
Re Ellenborough Park [1956] Ch 131

PARTIES:
Dean Anthony Tiller and Vicki May Tiller v Vanessa Marie Hawes

FILE NUMBER(S):
SC 2122/04

COUNSEL:
(P) J R Young
(D) D A Casperson

SOLICITORS:
(P) Karageorge & Co
(D) Pickering Priestley

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

SMART AJ

2122/04:

Dean Anthony TILLER & Vicki May TILLER v Vanessa Marie HAWES

JUDGMENT

1. The plaintiffs and the defendant are the registered proprietors of adjoining blocks of land, each of about 1 hectare in Loftus Road, Crescent Head, being Lots 2 and 1 respectively, DP882231. They are the result of a subdivision of a larger area. The lots are in an attractive area close to a beach. While Lots 1, 3, 4 and 5 have a frontage to Loftus Road, Lot 2 does not. For access from Lot 2 to Loftus Road and vice versa the registered proprietors of Lot 2 depend upon a right of carriageway over Lot 1 extending from Loftus Road to the boundary of Lot 2. The unusual covenant contained in the transfer to the defendant confers extensive rights of use of the carriageway on the plaintiffs and appears to be restrictive of the use of the carriageway by the defendant. There have been bitter disputes between the parties as to the use the covenant permits the defendant to have and as to her actual use. In order to understand this judgment frequent reference will need to be made at an early stage to Exhibit A – the large map showing Lots 1, 2 and 3.

2. By their summons filed on 25 March 2004 the plaintiffs sought orders that Ms Hawes by herself, her servants, contractors or agents cease to use the right of way 10 metres wide over her land in Lot 1, DP 882231 as a means of access to her land from Loftus Road and only use the said right of way as a means of crossing from one side of her adjoining land to the other side. The plaintiffs also sought an order that Ms Hawes reinstall the fencing on the right of way as soon as practicable, a declaration that the plaintiffs have a right to lock the gate granting access to the right of way from Loftus Road and an injunction that Ms Hawes be restrained from interfering with the gate. Relief…

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.

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Details

Case: [2005] NSWSC 1232
Decision Date: 2 December 2005

CaseChat Overview and Summary

In the Supreme Court of Queensland, Tiller v Hawes involved a dispute over the nature and extent of an easement and restrictive covenant over a property. The plaintiff, Tiller, sought to enforce a restrictive covenant that prohibited the defendant, Hawes, from using the property in a way that would be detrimental to the plaintiff's property. The defendant argued that the restrictive covenant was unenforceable due to the nature of the easement and that the covenant should be modified or terminated. The court was required to determine the proper construction of the restrictive covenant and whether it could be enforced as written, or if it required modification in light of the easement and surrounding circumstances.

The court examined the terms of the restrictive covenant and the easement, as well as the surrounding circumstances, including the nature of the properties and the intentions of the parties at the time the covenant was created. The court also considered the effect of previous proceedings, points not taken, and undertakings given by the parties. The court held that the restrictive covenant should be interpreted in light of the surrounding circumstances and the existence of the easement. The court found that the covenant was intended to protect the plaintiff's property from certain uses that would be incompatible with its intended use and that the covenant could be enforced as written, subject to certain modifications to accommodate the easement.

The court ordered that the restrictive covenant be enforced as written, subject to certain modifications to accommodate the easement. The modifications included allowing the defendant to use the easement for ingress and egress to the property, subject to certain conditions designed to minimise any potential impact on the plaintiff's property. The court also ordered that the defendant pay the plaintiff's costs of the proceedings. The decision highlights the importance of considering the surrounding circumstances and the intentions of the parties when interpreting restrictive covenants and easements. It also emphasises the need for careful drafting of such instruments to ensure that they achieve the intended purpose while accommodating competing interests.

Orders