Tran & Anor v Cowan & Ors - [2006] QSC 136

SUPREME COURT OF QUEENSLAND

CITATION:

Tran & Anor v Cowan & Ors [2006] QSC 136

PARTIES:

VAN DAT TRAN and LINDA LE TRAN
(applicants)
v
KERRY JAMES COWAN and JILLIAN RUTH COWAN
(first respondents)
and
B.M.D. CONSTRUCTIONS PTY LTD
(ABN 69 010 126 100)
(second respondent)

FILE NO:

BS9162 of 2005

DIVISION:

Trial

PROCEEDING:

Originating Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

14 June 2006

DELIVERED AT:

Brisbane

HEARING DATE:

1-2 June 2006

JUDGE:

Chesterman J

ORDER:

1. A statutory right of user in the form of an easement of way be imposed over Lot 251 on SP 163541 on SP 174012 County of Stanley Parish of Oxley, title reference 50466868 in respect of Lot 250 on SP 163541 County of Stanley Parish of Oxley, title reference 50466867 in terms to be agreed by the parties or, failing agreement, determined by the Court; and

2. the applicants pay to the respondents $1,000 as compensation for the imposition of the statutory right of user.

CATCHWORDS:

REAL PROPERTY – EASEMENTS – PARTICULAR EASEMENTS AND RIGHTS – RIGHTS OF WAY – CREATION – where applicants and respondents own adjoining land – where applicants seek statutory right of user over part of respondents’ driveway – where parties purchased land from developer who intended applicants to have benefit of registered easement in the nature sought but not registered by oversight – where vehicular access in absence of statutory right of way difficult and dangerous – where level of interference to respondents will be minor – whether statutory right of user is reasonably necessary – where respondents purchased land for price that reflected proposed easement – whether statutory right of user should include provision for payment by applicants of compensation

Property Law Act 1974, s 180

Lang Parade Pty Ltd v Peluso [2005] QSC 112, applied
Re Seaforth Land Sales Pty Ltd’s Land (No. 2) [1977] Qd R 317, applied
Stanford v Roberts [1901] 1 Ch 440, applied

COUNSEL:

D Kelly for the applicants
P A Kronberg for the respondents

SOLICITORS:

Nicol Robinson Halletts for the applicants
Westside Lawyers for the respondents

The applicants, Mr and Mrs Tran, are the owners of land described as Lot 250 on

SP 163541 in the County of Stanley, Parish of Oxley, title reference 50466867. It is located at the end of Melaleuca Crescent, Edenbrooke, a new suburb on the western outskirts of Brisbane. The respondents, Mr and Mrs Cowan, are the owners of

Lot 251 on SP 163541 in the same county and parish. The title reference of their land is 50466868. As the descriptions suggest the two lots adjoin. The respondents’ address is 14 Melaleuca Crescent.

By an amended originating application the applicants seek an order pursuant to

s 180 of the Property Law Act 1974 that the court impose upon Lot 251 an obligation of user in respect of Lot 250. The right of user sought is in essence an easement of way by which the applicants would have ‘full free and uninterrupted right…

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: [2006] QSC 136
Decision Date: 14 June 2006

CaseChat Overview and Summary

In the case of Tran & Anor v Cowan & Ors, the applicants sought a statutory right of user over part of the respondents’ driveway, which they claimed should have been registered as an easement in their favour. The applicants and respondents owned adjoining land, with the applicants asserting that they had been intended to benefit from a registered easement but this was overlooked by the developer. The applicants argued that vehicular access in the absence of a statutory right of way was difficult and dangerous, and that the level of interference to the respondents would be minor. The court had to decide whether the statutory right of user was reasonably necessary and, if so, whether the applicants should compensate the respondents for the imposition of the easement.

The court found that the statutory right of user was reasonably necessary given the dangerous nature of vehicular access in the absence of a right of way. The court also noted that the respondents had purchased the land knowing of the proposed easement and that the price reflected this intention. The court concluded that the applicants should compensate the respondents for the imposition of the statutory right of user, given the minor interference it would cause.

Consequently, the court ordered that a statutory right of user in the form of an easement of way be imposed over the respondents’ land in favour of the applicants. The terms of the easement were to be agreed upon by the parties, or, if they could not agree, determined by the court. Additionally, the applicants were ordered to pay the respondents $1,000 as compensation for the imposition of the statutory right of user. This decision highlights the importance of clear communication and registration of easements when purchasing property, as well as the need for reasonable compensation when a statutory right of user is imposed.

Orders

Orders of the court

1. A statutory right of user in the form of an easement of way be imposed over Lot 251 on SP 163541 on SP 174012 County of Stanley Parish of Oxley, title reference 50466868 in respect of Lot 250 on SP 163541 County of Stanley Parish of Oxley, title reference 50466867 in terms to be agreed by the parties or, failing agreement, determined by the Court; and

2. the applicants pay to the respondents $1,000 as compensation for the imposition of the statutory right of user.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Tran & Anor v Cowan & Ors [2006] QSC 136
PARTIES:	VAN DAT TRAN and LINDA LE TRAN (applicants) v KERRY JAMES COWAN and JILLIAN RUTH COWAN (first respondents) and B.M.D. CONSTRUCTIONS PTY LTD (ABN 69 010 126 100) (second respondent)
FILE NO:	BS9162 of 2005
DIVISION:	Trial
PROCEEDING:	Originating Application
ORIGINATING COURT:	Supreme Court of Queensland
DELIVERED ON:	14 June 2006
DELIVERED AT:	Brisbane
HEARING DATE:	1-2 June 2006
JUDGE:	Chesterman J
ORDER:	1. A statutory right of user in the form of an easement of way be imposed over Lot 251 on SP 163541 on SP 174012 County of Stanley Parish of Oxley, title reference 50466868 in respect of Lot 250 on SP 163541 County of Stanley Parish of Oxley, title reference 50466867 in terms to be agreed by the parties or, failing agreement, determined by the Court; and 2. the applicants pay to the respondents $1,000 as compensation for the imposition of the statutory right of user.
CATCHWORDS:	REAL PROPERTY – EASEMENTS – PARTICULAR EASEMENTS AND RIGHTS – RIGHTS OF WAY – CREATION – where applicants and respondents own adjoining land – where applicants seek statutory right of user over part of respondents’ driveway – where parties purchased land from developer who intended applicants to have benefit of registered easement in the nature sought but not registered by oversight – where vehicular access in absence of statutory right of way difficult and dangerous – where level of interference to respondents will be minor – whether statutory right of user is reasonably necessary – where respondents purchased land for price that reflected proposed easement – whether statutory right of user should include provision for payment by applicants of compensation Property Law Act 1974, s 180 Lang Parade Pty Ltd v Peluso [2005] QSC 112, applied Re Seaforth Land Sales Pty Ltd’s Land (No. 2) [1977] Qd R 317, applied Stanford v Roberts [1901] 1 Ch 440, applied
COUNSEL:	D Kelly for the applicants P A Kronberg for the respondents
SOLICITORS:	Nicol Robinson Halletts for the applicants Westside Lawyers for the respondents