Tomark Pty Ltd v Bellevue Crescent Pty Ltd

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CITATION: TOMARK PTY LTD and Ors v BELLEVUE CRESCENT PTY LTD and Ors [1999] NSWCA 347
FILE NUMBER(S): CA 40211/98
HEARING DATE(S): 27 August 1999
JUDGMENT DATE:
28 September 1999

PARTIES :
Tomark Pty Ltd (1st Appellant)
Mod and Disposals Stores Pty Ltd (2nd Appellant)
Marland Holdings Pty Ltd (3rd Appellant)
Bellevue Crescent Pty Ltd (1st Respondent)
50 York Properties Pty Ltd (2nd Respondent)
Council of The City of Sydney (3rd Respondent)
The Hospitals Contribution Fund of Australia Ltd (4th Respondent)
JUDGMENT OF: Priestley JA at 1; Beazley JA at 4; Stein JA at 5
LOWER COURT JURISDICTION: Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S) : EQ 1735/97
LOWER COURT JUDICIAL OFFICER: Young J
COUNSEL: G Downes QC/M H Southwick (Appellants)
J E Armfeld (1st Respondent)
Excused Appearance (2nd Respondent)
B A Coles QC/Dr J Renwick (3rd Respondent)
J Needham (4th Respondent)
SOLICITORS: Tribe, Conway & Co (Appellants)
Aequitas (1st Respondent)
Dexter Healey (2nd Respondent)
Abbott Tout (3rd Respondent)
Murphy & Moloney with Pryor Tzannes & Walls (4th Respondent)
CATCHWORDS: EQUITY - construction of Alignment of Streets Act 1834 - whether laneway deemed to be dedicated to the public - Deed of Partition - middle of the road rule; EVIDENCE - s 79 Evidence Act - 'wholly or substantially based'
ACTS CITED: Alignment of Sydney Streets Act 1834, s 3
City of Sydney Corporation Act 1879
Evidence Act 1995
Sydney Corporation Act 1850, ss 90, 92
SCR Pt 51 r 23
CASES CITED:
 Attorney General v The City Bank of Sydney (1920) 20 SR (NSW) 216
Bugg v Day (1949) 79 CLR 442
Chilcotin Pty Ltd v Cenelage Pty Ltd [1999] NSWCA 11
Newington v Windeyer (1985) 3 NSWLR 555
Permanent Trustee Co of NSW Ltd v Campbelltown Corporation (1960) 105 CLR 401
Quick v Stoland Pty Ltd (1998) 157 ALR 615
Water Board v Moustakas (1988) 180 CLR 1
DECISION: Appeal dismissed with costs

    IN THE SUPREME COURT
    OF NEW SOUTH WALES
    COURT OF APPEAL
    CA 40211/98
    EQ 1735/97
                        PRIESTLEY JA
                            BEAZLEY JA
                            STEIN JA
    Tuesday, 28 September 1999
    TOMARK PTY LTD and ORS v BELLEVUE CRESCENT PTY LTD and ORS

    The appeal concerned whether a small lane off George Street, between Market and King Streets, Sydney, had been deemed to be dedicated to the public pursuant to s 3 of the Alignment of Sydney Streets Act 1834. Section 3 of the Act provided that all land ‘left open and used as a carriageway or footway’ would be impliedly dedicated.

    In proceedings before Young J, the first and third respondents sought a declaration that the subject lane had been deemed to be dedicated to the public. Since the Alignment of Sydney Streets Act 1834 had been repealed by the City of Sydney Corporation Act 1879 the issue at trial was whether the subject lane had been left open and used by the public prior to 1879. His Honour held that the subject land was deemed to have been dedicated to the public and declared accordingly.

    On appeal…

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Details
Case
[1999] NSWCA 347
Decision Date

CaseChat Overview and Summary

Tomark Pty Ltd (the appellant) and Bellevue Crescent Pty Ltd (the respondent) were parties to a dispute concerning the ownership of a laneway. The appellant sought to establish that the laneway had been dedicated to the public under the *Alignment of Streets Act 1834* (NSW). The respondent, however, contended that the laneway remained private property, relying on a Deed of Partition and the "middle of the road" rule. The matter came before the Court of Appeal of New South Wales.

The primary legal issues before the Court of Appeal were whether the laneway had been dedicated to the public pursuant to the *Alignment of Streets Act 1834*, and if not, whether the Deed of Partition and the application of the "middle of the road" rule supported the respondent's claim to ownership. The Court also considered the evidentiary threshold under section 79 of the *Evidence Act 1995* (Cth) concerning whether evidence was "wholly or substantially based" on hearsay.

The Court of Appeal dismissed the appeal, upholding the primary judge's findings. The Court reasoned that the evidence presented did not establish a dedication of the laneway to the public under the *Alignment of Streets Act 1834*. Furthermore, the Court found that the Deed of Partition, when interpreted in light of the "middle of the road" rule, indicated that the laneway was intended to remain private property. The Court also found that the evidence relied upon by the appellant was not wholly or substantially based on hearsay, thus satisfying the requirements of section 79 of the *Evidence Act 1995*.

The appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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