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Treweeke v 36 Wolseley Road Pty Ltd

Treweeke v 36 Wolseley Road Pty Ltd

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HIGH COURT OF AUSTRALIA

. McTiernan, Walsh and Mason JJ.

TREWEEKE v. 36 WOLSELEY ROAD PTY. LTD.

(1973) 128 CLR 274

17 August 1973

Real Property

Real Property—Easements—Right of way—Abandonment—Non-user—Erection of fence blocking way—Installation of swimming pool obstructing passage—Availability of alternative route by trespass—Conveyancing Act, 1919 (N.S.W.), s. 89*. *Section 89 of the Conveyancing Act, 1919 (N.S.W.) provides so far as material as follows: "(1) Where land is subject to an easement or to a restriction arising under covenant or otherwise as to the user thereof, the court may from time to time, on the application of any person interested in the land, by order modify or partially extinguish the easement or restriction upon being satisfied—... (b) that the persons of full age and capacity for the time being or from time to time entitled to the easement or to the benefit of the restriction, whether in respect of estates in fee simple or any lesser estates or interests in the land to which the easement or the benefit of the restriction is annexed, ... by their acts or omissions may reasonably be considered to have abandoned the easement wholly or in part or waived the benefit of the restriction wholly or in part."

Decisions

August 17.
The following written judgments were delivered:-
McTIERNAN J. This is an appeal from the judgment of the Supreme Court of New South Wales pronounced by Hope J. after hearing the application on behalf of Mrs. Treweeke to which the appeal relates. The learned judge refused the application. This Court is asked to set aside the judgment and make an order granting the application. (at p277)

2. The application is brought in relation to a right of way created in 1927. It is a right to utilize a strip of land three feet wide along the north-west boundary - a side boundary - of Mrs. Treweeke's property as a means of access to the beach at Double Bay. She is registered proprietor. The right of way as granted is appurtenant to the allotment on which the premises, no. 36 Wolseley Road, Point Piper, are built. The respondent is the registered proprietor of this property. The existence is shown on Mrs. Treweeke's title to her property and on the respondent's title to its property. They hold an estate in fee simple in their respective properties. Mrs. Treweeke's estate is diminished to the extent of the right of way. The respondent's estate is amplified to that extent. Mrs. Treweeke asked the Supreme Court to grant her one of three orders the terms of which respectively are set out in the summons commencing the application. The orders sought are stated to be alternatives. The first is asked for in terms adopted from s. 89 (3) of the Conveyancing Act, 1919-1969 (N.S.W.). The second is asked for in different terms also adopted from s. 89 (3). The third is asked for in terms adopted from s. 89 (1). (at p278)

3. Section 89 (3) provides that the Supreme…

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: [1973] HCA 27
Decision Date: 17 August 1973

CaseChat Overview and Summary

The High Court of Australia considered an appeal concerning a dispute between the appellant, Mr. Treweeke, and the respondent, 36 Wolseley Road Pty Ltd, regarding a right of way over land. The core of the disagreement lay in the interpretation and enforceability of a right of way granted by a previous owner of the land.

The central legal issues before the High Court were whether the right of way, as described in the relevant deed, was sufficiently defined to be enforceable and, if so, whether it had been validly created and was binding on the current owner of the servient tenement. The court also had to consider the principles governing the construction of easements and the requirements for their certainty.

The High Court, comprising McTiernan, Walsh, and Mason JJ, reasoned that for a right of way to be valid, its terms must be sufficiently certain to allow the court to ascertain the extent of the burden imposed on the servient land and the rights granted to the dominant land. Applying established principles of property law, the court examined the wording of the deed creating the right of way. They found that the description of the right of way was too vague and lacked the necessary particularity to be legally enforceable as an easement. The court concluded that the deed did not create a registrable or enforceable easement because the precise location and extent of the right of way were not adequately defined.

Orders