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Tout v Johnson

Tout v Johnson

Case [2021] NSWSC 1311 14 October 2021

Easements & Covenants

Adverse Possession

Unjust Enrichment

Property Law

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Supreme Court

New South Wales

Medium Neutral Citation: Tout v Johnson [2021] NSWSC 1311
Hearing dates: 30 August 2021 – 1 September and 8 September 2021
Date of orders: 14 October 2021
Decision date: 14 October 2021
Jurisdiction: Equity
Before: Darke J
Decision:
Application for imposition of easement refused.

Catchwords:
LAND LAW – easements – creation of easements – creation by order of the Court – plaintiff and defendants own adjoining rural lots – lots used for residential and rural purposes – plaintiff seeks right of carriageway over a track on defendants’ land to obtain access to public road – prior to hearing track was damaged by heavy rain and became impassable – easement ultimately sought by plaintiff would allow plaintiff to undertake works on track to repair damage – access to public road available using only plaintiff’s land – quality of access constrained due to a creek crossing – whether easement sought is reasonably necessary for the effective use or development of plaintiff’s land – whether use or development of plaintiff’s land with easement at least substantially preferable to use or development of the land without the easement – deficiencies in evidence as to cost of works required on plaintiff’s land and defendants’ land to facilitate access – plaintiff failed to show that easement was reasonably necessary for the effective use or development of her land – s 88K(1) of the Conveyancing Act 1919 (NSW) not satisfied

Legislation Cited:
Conveyancing Act 1919 (NSW), s 88K

Cases Cited:
Gordon v Lever (2018) 97 NSWLR 90; [2018] NSWCA 43
Gordon v Lever (No 2) (2019) 19 BPR 39,915; [2019] NSWCA 275
ING Bank (Australia) Ltd v O’Shea (2010) 14 BPR 27,317; [2010] NSWCA 71
Khattar v Wiese (2005) 12 BPR 23,235; [2005] NSWSC 1014
Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd (2012) 16 BPR 31,257; [2012] NSWCA 445
Studholme v Rawson (2020) 19 BPR 40,293; [2020] NSWCA 76

Category: Principal judgment
Parties: Michelle Tout (Plaintiff)
Brendan Charles Johnson (First Defendant)
Jodie Gail Williams (Second Defendant)
The Office of the Registrar-General (Third Defendant)
Representation:
Counsel:
Mr A Joseph (Plaintiff)
Mr S Lipp (First and Second Defendants)
Solicitors:
Lindeman Lawyers (Plaintiff)
Downeys Lawyers Pty Ltd (First and Second Defendants)

File Number(s): 2019/375183
Publication restriction: None

Judgment

Introduction

The plaintiff, Ms Michelle Tout, is the owner of certain rural lots near Yarras, which is about 70km inland from Port Macquarie. She seeks an order under s 88K of the Conveyancing Act 1919 (NSW) for the imposition of an easement in the nature of a right of carriageway over a parcel of land owned by the first and second defendants, Mr Brendan Johnson and Ms Jodie Williams. (They will be referred to simply as “the defendants” in circumstances where the only other defendant, the Registrar-General, has filed a submitting appearance.) The plaintiff claims that the easement is reasonably necessary for the effective use or development of her land (see s 88K(1) of the Act). In particular, it is…

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 Tout v Johnson

Details

AGLC: Tout v Johnson [2021] NSWSC 1311
Case: [2021] NSWSC 1311
Decision Date: 14 October 2021

CaseChat Overview and Summary

The case of Tout v Johnson involved the plaintiff, Tout, seeking an easement over a track on the defendants’ land to obtain access to a public road. The plaintiff's land, used for residential and rural purposes, was rendered inaccessible due to heavy rainfall, necessitating the repair of the track. The easement sought would have allowed the plaintiff to undertake the necessary works on the track to restore access to the public road. The primary issue before the court was whether the easement sought was reasonably necessary for the effective use or development of the plaintiff's land, and if the use or development of the land with the easement was substantially preferable to without it.

The court considered the statutory criteria outlined in section 88K(1) of the Conveyancing Act 1919 (NSW), which includes assessing the necessity of the easement for the effective use or development of the dominant tenement and the relative preference for the use or development of the land with the easement. The court found that the plaintiff had not adequately demonstrated that the easement was reasonably necessary for the effective use or development of her land. Furthermore, the court noted significant deficiencies in the evidence presented regarding the costs of the works required on both the plaintiff's and the defendants' land to facilitate access. Consequently, the plaintiff failed to meet the statutory requirements for the grant of an easement.

The court held that the plaintiff's application for an easement was not substantiated by the evidence and did not satisfy the criteria set out in the Conveyancing Act. Consequently, the plaintiff's application was dismissed, and no easement was granted. The court emphasised the importance of providing comprehensive evidence to establish the necessity and preference for the easement as required by the legislation.

Orders