Tomark Pty Ltd v Bellevue Crescent Pty Ltd

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.