DELMA ANNE VALMORBIDA	Plaintiff/ Defendant by Counterclaim
v
LES DENNY PTY LTD (ACN 652 661 955) & ORS (according to the attached schedule)	Defendants/ Plaintiffs by Counterclaim

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JUDGE:	Gorton J
WHERE HELD:	Melbourne
DATE OF HEARING:	12, 13, 14, 15, 25, 26 and 27 September 2023
DATE OF JUDGMENT:	23 November 2023
CASE MAY BE CITED AS:	Valmorbida v Les Denny Pty Ltd
MEDIUM NEUTRAL CITATION:	[2023] VSC 680

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PROPERTY – Whether registered proprietor dedicated land as a public highway – Whether or when acceptance of or acquiescence in use of land by the public amounts to dedication – Where actual intention to dedicate must be established – Anderson v City of Stonnington (2017) 227 LGERA 176.

PROPERTY – Easements by prescription – Whether plaintiff’s use of defendants’ land satisfies requirements for easement under doctrine of lost modern grant – Where easements ‘howsoever acquired and subsisting’ fall within exception to indefeasibility of title – Whether s 42(2)(d) of the Transfer of Land Act 1958 (Vic) operates to defeat an easement where there has been a transfer of land during the period required to establish the easement – What is meant by ‘acquired’ – What is meant by ‘subsisting’ – Relevance of the exception for adverse possession – Laming v Jennings [2018] VSCA 335 – Staughton v Brown (1875) 1 VLR (L) 150 – Nelson v Hughes [1947] VLR 227 – Dalton v Angus (1881) 6 App Cas 740 – Transfer of Land Act 1958 (Vic) s 42(2)(d) – Transfer of Land Statute 1866 (Vic).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M Townsend	S & K Planning Lawyers
For the Defendants	Mr A Strahan KC and Mr J Masters	Strongman & Crouch Solicitors

TABLE OF CONTENTS

A. Introduction.................................................................................................................................. 1

B. The legal principles..................................................................................................................... 3

B.1Dedication as a public highway.......................................................................................... 3
B.2Easement by prescription..................................................................................................... 6
B.2.1Principles by which an easement is established................................................... 6
B.2.2 The different role of ‘acquiescence’ in the two circumstances under consideration.................................................................................................................................... 9
B.2.3The role of indefeasibility of title under the Transfer of Land Act 1958 (Vic) 10

C. Matters relevant particularly to the question of public dedication................................. 11

C.1The plan of subdivision...................................................................................................... 11
C.2The surrounding area......................................................................................................... 16
C.3The reference to Stevens Court in maps.......................................................................... 16
C.4The chain at the end of Stevens Court where it joined the main part of lot 7............ 17

D. The use to which the land has been put................................................................................ 17

D.1The actual use of Stevens Court following the 1967 subdivision................................ 17
D.1.1Occupants and visitors to 33 Ivanhoe Street (lot 4)........................................... 18
D.1.2Occupants and visitors to 27-29 Ivanhoe Street (lots 2 and 3)......................... 18
D.1.3Other neighbours.................................................................................................... 19
D.1.4People who weren’t neighbours........................................................................... 20

D.2Was the use of Stevens Court ‘as of right’ or with permission?.................................. 21
D.2.1Members of the public generally.......................................................................... 21
D.2.2Mrs Fearon and the other neighbours at the back of lot 7................................ 21
D.2.3The Valmorbidas.................................................................................................... 22
D.2.3.1Mrs McKendry of Wistari Pty…

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 Valmorbida v Les Denny Pty Ltd

Details

AGLC: Valmorbida v Les Denny Pty Ltd [2023] VSC 680
Case: [2023] VSC 680
Decision Date: 23 November 2023

CaseChat Overview and Summary

Valmorbida sought a declaration that a section of the defendants' land was dedicated as a public highway and an easement over the defendants' land for ingress and egress. The defendants argued that the land in question was not dedicated as a public highway and that the easement had not been established. The Supreme Court of Victoria considered the case, addressing whether the land was dedicated as a public highway and whether an easement was established by prescription.

The court first examined the concept of dedication of land as a public highway. It held that dedication requires an actual intention to dedicate and the acceptance of the land by the public. The court found that there was no evidence of an actual intention to dedicate the land as a public highway and that there was no acceptance by the public. The court then turned to the easement by prescription. It found that the easement was established by the doctrine of lost modern grant. The court rejected the defendants' argument that section 42(2)(d) of the Transfer of Land Act 1958 (Vic) operated to defeat the easement. The court held that the easement was acquired and subsisting within the meaning of the exception to indefeasibility of title.

The court held that the land was not dedicated as a public highway and that the easement was established. The court found that the easement was acquired and subsisting within the meaning of the exception to indefeasibility of title. The court granted the plaintiff's claims in full. The defendants were ordered to execute a public highway dedication document and grant the plaintiff an easement over the land.

Orders