Wallace & Wallace v Goodwin - [2004] QSC 42

SUPREME COURT OF QUEENSLAND

CITATION: Wallace & Wallace v Goodwin [2004] QSC 042

PARTIES:  THOMAS SHEWAN WALLACE & PAULINE           JOSEPHINE WALLACE
(Applicants)
v
JOHN PATRICK ANTHONY GOODWIN       (Respondent)

FILE NO: 487/2003

DIVISION: Trial Division

DELIVERED ON: 12 March 2004

DELIVERED AT: Rockhampton

HEARING DATES: 10 and 11 December 2003

JUDGE: Dutney J

ORDERS:1. Application dismissed;
2.Applicants to pay the respondent’s costs of the application to be assessed on the standard basis.

CATCHWORDS: EASEMENTS AND PRESCRIPTIONS – EXTINGUISHMENT – whether s. 181(1)(a), (b), (c) or (d) Property Law Act 1974 (Qld) satisfied on the evidence – whether an agreement to extinguish the easement existed between the parties - where easement provides alternative access for user of the dominant tenement when required and is used for morning exercise

Property Law Act 1974 (Qld), s. 181(1)(a), (b), (c) and (d)
Eucalypt Group Pty Ltd v Robin [2003] QSC 63 (19 March 2003), considered and followed
Durian (Holdings) Pty Ltd v Cavacourt Pty Ltd (2000) 10 BPR 18,099, cited
Re Eddowes [1991] Qd R 318, cited

COUNSEL:Mr Murray (Solicitor) for the applicants
Mr Bowden for the respondent

SOLICITORS: Kenny & Co for the applicants
Goodwin & Co for the respondent

The applicants are the owners of land described as Lot 2 on RP 610402 County of Clinton Parish of Auckland. The land is burdened by right of way easement No 601538275 (Easement A) in favour of the respondent, Mr Goodwin.

The servient tenement (Lot 2) is a block of rural residential land near Gladstone with an area of a little over 13 acres. It is a long narrow block fronting the Calliope River at the western end and a public road to the east. Lot 2 shares a common northern boundary with the dominant tenement. The dominant tenement (Lot 1) is a 40 acre block also bounded by the Calliope River in the west and the public road in the east.

A dwelling house has been constructed at the Calliope River end of each of Lots 1 and 2.

Mr Goodwin bought Lot 1 in 1976. At that time there was a swampy water course covering most of the eastern half of the block, as appears from exhibit “JPAG 2” to Mr Goodwin’s affidavit filed 7 November 2003.

In 1977 the watercourse was dammed as shown in the same exhibit.

In order to obtain all weather access to the western half of his block Mr Goodwin negotiated and registered Easements A and B with his then neighbour in 1979. Easement A provides right of way from the public road along the southern boundary of Lot 2 to a position about half way along the block. It then traverses Lot 2 to the northern boundary. It then follows the boundary between Lots 1 and 2 parallel with Easement B to a position approximately level with the house on each block. Easement B is on Lot 1. Lot 2 has the benefit of Easement B. The result is that the access along the common…

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.

Keep reading for free

Create a free CaseChat account to read Wallace & Wallace v Goodwin and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2004] QSC 42
Decision Date: 12 March 2004

CaseChat Overview and Summary

The Supreme Court of Queensland was asked to decide whether an easement providing alternative access to a dominant tenement could be extinguished under the Property Law Act 1974 (Qld). The applicants, Thomas Shewan Wallace and Pauline Josephine Wallace, sought to extinguish a right of way easement that allowed the respondent, John Patrick Anthony Goodwin, to access his property. The easement had been created to allow access to Mr Goodwin’s property when a watercourse on his land was dammed. However, Mr Goodwin later built an alternative access route, leading the applicants to argue that the easement was obsolete and impeded the use of their property. The applicants also argued that Mr Goodwin had agreed to extinguish the easement.

The court considered whether the easement was obsolete, impeded reasonable use of the servient tenement, or if there was an agreement to extinguish the easement. The court found that the easement was not obsolete as it still provided an alternative access route. The court also found that the easement did not impede the use of the servient tenement and that there was no agreement to extinguish the easement. The court rejected the applicants' evidence due to their animosity towards Mr Goodwin and accepted Mr Goodwin’s evidence, which was supported by contemporaneous documents.

The court dismissed the application and ordered the applicants to pay the respondent’s costs of the application on the standard basis.

Orders