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Towers v Stolyar

Towers v Stolyar

Case [2017] NSWSC 526 4 May 2017

Easements & Covenants

Declaratory Relief

Property Law

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Towers v Stolyar [2017] NSWSC 526
Hearing dates: 26 April 2017
Date of orders: 04 May 2017
Decision date: 04 May 2017
Jurisdiction: Equity
Before: Darke J
Decision:
Declaration made that easement for parking and garaging is valid and enforceable.

Catchwords: REAL PROPERTY – easements – validity – easement confers rights of parking and garaging – easement confers rights to keep structure erected and replace structure – whether easement capable of being the subject matter of a grant – whether easement deprives the servient owner of proprietorship and possession – easement held to be valid – declaratory relief granted
Legislation Cited: Conveyancing Act 1919 (NSW), s 88B
Real Property Act 1900 (NSW)
Cases Cited: Clos Farming Estates Pty Ltd v Easton (2002) 11 BPR 20,605; [2002] NSWCA 389
Copeland v Greenhalf [1952] Ch 488
Harada v Registrar of Titles [1981] VR 743
Hare v van Brugge (2013) 84 NSWLR 41; [2013] NSWCA 74
In Re Ellenborough Park [1956] Ch 131
Moncrieff v Jamieson [2007] 1 WLR 2620; [2007] UKHL 42
Owners of East Fremantle Shopping Centre West Strata Plan 8618 v Action Supermarkets Pty Ltd (2008) 37 WAR 498; [2008] WASCA 180
Registrar-General of New South Wales v Jea Holdings (Aust) Pty Ltd (2015) 88 NSWLR 321; [2015] NSWCA 74
Sertari Pty Ltd v Nirimba Developments Pty Ltd (2008) NSW ConvR 56-200; [2007] NSWCA 324
Weigall v Toman [2008] 1 Qd R 192; [2006] QSC 349
Westfield Management Ltd v Perpetual Trustee Company Ltd (2007) 233 CLR 528; [2007] HCA 45
White v Betalli (2007) 71 NSWLR 381; [2007] NSWCA 243
Category: Principal judgment
Parties: Barrie Towers (First Plaintiff/Cross-Defendant)
Celia Towers (Second Plaintiff/Cross-Defendant)
Faina Stolyar (First Defendant/Cross-Claimant)
Ian Stolyar (Second Defendant)
Representation:
Counsel:
Mr J Giles SC with Mr H Grace (Plaintiffs/Cross-Defendants)
Mr N C Kidd SC(Defendants/Cross-Claimant)
Solicitors:
TressCox Lawyers (Plaintiffs)
Yates Beaggi Lawyers (Defendants/Cross-Claimant)

File Number(s): 2016/233519
Publication restriction: None

Judgment

Introduction

The plaintiffs, Barrie Towers and Celia Towers, are the registered proprietors as joint tenants of Lot B in Deposited Plan 402700, known as 6A Dumaresq Road, Rose Bay. The plaintiffs have owned the property since 1970. The first defendant, Faina Stolyar, is the registered proprietor of Lot A in Deposited Plan 33652, known as 2C (formerly 4A) Dumaresq Road, Rose Bay. She acquired the property in May 2015. The second defendant, Ian Stolyar, is the son of the first defendant. He occupies the 2C Dumaresq Road property with his family.
The two properties share a common boundary. They both have frontages to the eastern shore of Rose Bay.
These proceedings concern a right of vehicle parking and garaging (referred to hereafter as “the Easement”) which is the subject of Deposited Plan 643174 and associated instrument under s 88B of the Conveyancing Act 1919 (NSW). Deposited Plan 643174 was registered on 21 February 1990.
The plaintiffs claim that the defendants have wrongfully interfered with their rights under the Easement and threaten to…

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 Towers v Stolyar

Details

AGLC: Towers v Stolyar [2017] NSWSC 526
Case: [2017] NSWSC 526
Decision Date: 04 May 2017

CaseChat Overview and Summary

Towers v Stolyar is a case before the court regarding the validity of an easement that confers rights of parking and garaging, as well as rights to keep a structure erected and replace it. The dispute concerns whether such an easement is capable of being the subject matter of a grant and whether it deprives the servient owner of proprietorship and possession. The court was tasked with determining the nature of the easement and its enforceability under property law.

The primary legal issues were whether the easement was sufficiently defined and capable of being the subject matter of a grant, and whether it deprived the servient owner of proprietorship and possession. The court examined the nature of the easement, its terms, and the extent to which it affected the servient owner's rights over the land. It also considered whether the easement was a legitimate and reasonable use of the property that could be enforced against the servient owner.

The court found that the easement was clearly defined and capable of being the subject matter of a grant. It held that the easement did not deprive the servient owner of proprietorship and possession, as it was a reasonable and legitimate use of the property. The easement was seen as a reasonable accommodation for the dominant tenement's use and enjoyment of the land, without unduly restricting the servient owner's rights. Consequently, the court granted declaratory relief confirming the validity of the easement and the rights it conferred on the dominant owner.

Orders