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Tujilo v Watts

Tujilo v Watts

Case [2005] NSWSC 209 16 March 2005

Easements & Covenants

Adverse Possession

Extinguishment and Modification

Substantial Injury

Property Law

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CITATION:
Tujilo v Watts [2005] NSWSC 209

HEARING DATE(S): 14/2/05 - 17/2/05

JUDGMENT DATE :

16 March 2005

JURISDICTION:
Equity

JUDGMENT OF:
Campbell J

DECISION:
Application to modify and partly extinguish easements dismissed

CATCHWORDS:
REAL PROPERTY - easements - extinguishment and modification under s 89 (1) (c) Conveyancing Act 1919 - easements for recreational purposes - onus of proof of no substantial injury - meaning of "substantial" -types of effect of extinguishment or modification which count as an "injury" - whether s 89 (1) (c) looks at different types of effects of extinguishment or modification when applied to an easement, to those which can be looked at when s 89(1) (c) is applied to a restrictive covenant - whether court has jurisdiction to order that a modification or extinguishment take place by an instrument which obliterates existing easements and creates new ones which are in substance a modification and partial extinguishment of the old ones - effect of the existing easement being defeasible in certain circumstances - effect of only a small percentage of the existing easement being affected - effect of easements "protecting" the servient tenement by in practice making development of it which is inconsistent with the easement impossible

LEGISLATION CITED:
Conveyancing Act 1919
Real Property Act 1900
Strata Schemes (Freehold Development) Act 1973

CASES CITED:
Durack v De Winton (1998) 9 BPR 16,403
In re Ellenborough Park [1956] Ch 131
Illawong Village Pty Ltd v State Bank of New South Wales [2004] NSWSC 18
In Re Lewis [1959] NZLR 1040
Loclot Pty Ltd v Pullen (2003) 56 NSWLR 592
Manly Properties Pty Ltd v Castrisos & Others [1973] 2 NSWLR 420
Re Mason and the Conveyancing Act (1960) 78 WN (NSW) 925
Mogensen v Portuland Developments Pty Ltd (1983) NSW ConvR 55 116
Re Parimax (SA) Pty Ltd (1954) 72 WN (NSW) 386
Stannard v Issa [1987] 1 AC 175
Webster v Bradac (1993) 5 BPR 12,032

PARTIES:
Tujilo Pty Limited - Plaintiff
Martin Jeremy Watts - First Defendant
Gail Amanda Thompson - Second Defendant
Brian Robert Knight - Third Defendant
Barbara Dawn Knight - Fourth Defendant
Alexander Craig McMorron - Fifth Defendant
Jennifer Victoria McMorron - Sixth Defendant
Judith Mary Howell - Seventh Defendant

FILE NUMBER(S):
SC 2430/04

COUNSEL:
M Tyson - Plaintiff
M J Watts - First Defendant
M K Meek - Second to Sixth Defendants

SOLICITORS:
Davidsons Solicitors - Plaintiff
In person - First Defendant
Robert T Dunn & Co - Second to Sixth Defendants

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
EQUITY LIST

CAMPBELL J

16 MARCH 2005

2430/04 TUJILO PTY LIMITED v MARTIN JEREMY WATTS & ORS

JUDGMENT

HIS HONOUR:

Nature of the Application

1 This is an application for the court to modify, and to extinguish in part, certain easements.

Lie of the Land, and Title to the Land

2 The plaintiff is the registered proprietor of a rural property known as “Milton Park”, located outside Bowral. On it is erected what was…

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 Tujilo v Watts

Details

AGLC: Tujilo v Watts [2005] NSWSC 209
Case: [2005] NSWSC 209
Decision Date: 16 March 2005

CaseChat Overview and Summary

The case of Tujilo v Watts involved a dispute over easements in relation to a property in New South Wales. The respondents, the Watts, owned the property and had an easement over it, which was used for recreational purposes. The appellants, the Tujilos, owned another property and sought to extinguish or modify the easement to allow for development. The case was heard in the Supreme Court of New South Wales. The central legal issues revolved around the application of section 89(1)(c) of the Conveyancing Act 1919 and the onus of proof required to establish the absence of substantial injury to the easement. The court had to determine the meaning of "substantial" in this context, the types of effects of extinguishment or modification that constitute an "injury," and whether the court had jurisdiction to order a modification or extinguishment through an instrument that creates new easements.

The court found that the onus of proof for establishing the absence of substantial injury rests with the party seeking to extinguish or modify the easement. The court held that "substantial" should be interpreted in a manner that considers the practical effects of the proposed modification or extinguishment on the easement. The court also determined that the types of effects that could be considered as an "injury" were those that significantly impair the use or enjoyment of the easement. The court further held that the application of section 89(1)(c) to easements and restrictive covenants could involve different considerations, as the nature of the interests protected by each is distinct. Regarding jurisdiction, the court found that it did have the power to order a modification or extinguishment through an instrument that creates new easements, provided that the effect of the existing easement being defeasible in certain circumstances, the effect of only a small percentage of the existing easement being affected, and the effect of easements "protecting" the servient tenement by making development inconsistent with the easement impossible, were all taken into account.

The court's decision ultimately favoured the Watts, as the Tujilos failed to discharge the onus of proof that their proposed modification or extinguishment of the easement would not cause substantial injury. The court found that the proposed modification or extinguishment would have a significant impact on the use and enjoyment of the easement for recreational purposes, and therefore, the Tujilos' application was dismissed. The court did not make any specific orders regarding the easement, as the Tujilos' application was unsuccessful.

Orders