Westfield Management Limited v Perpetual Trustee Company Limited [2007] HCA 45 3 October 2007 S210/2007
ORDER
Appeal dismissed with costs.
On appeal from the Supreme Court of New South Wales
Representation
B W Walker SC with R G McHugh SC and N J Owens for the appellant (instructed by Speed and Stracey Lawyers)
N C Hutley SC with S Flanigan, J C Giles and S J Free for the respondent (instructed by Deacons Lawyers)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Westfield Management Limited v Perpetual Trustee Company Limited
Real property – Torrens system land – Easements – An easement granted the right to go, pass and repass for all purposes to and from the appellant's dominant tenement over the respondent's servient tenement – The appellant sought to use the easement in order to access remoter properties adjoining the dominant tenement – Whether such use was permitted by the easement.
Real property – Torrens system land – Easements – Construction – Whether the expression "to and from" encompassed access across the dominant tenement to remoter properties – Whether the expression "for all purposes" encompassed access across the dominant tenement to remoter properties.
Evidence – Torrens system land – Easements – Construction – Whether evidence was admissible regarding the intention or contemplation of the parties at the time of, or subsequent to, the grant – Relevance of the Torrens Register.
Words and phrases – "for all purposes", "to and from".
GLEESON CJ, GUMMOW, KIRBY, HAYNE AND HEYDON JJ. This litigation concerns the terms of an easement conferring a right of way by means of a vehicular ramp under the servient tenement. What is at stake is access to, from and over several parcels of land in the central business district of the City of Sydney. All of these parcels are registered under the provisions of the Real Property Act 1900 (NSW) ("the RP Act"). The appellant ("Westfield") is the present registered proprietor of the dominant tenement[1] upon which is erected the multi-storey commercial premises known as "Skygarden". The respondent ("Perpetual") is the registered proprietor of the servient tenement[2] upon which is erected the multi-storey commercial premises known as "Glasshouse".
[1]Certificate of Title Volume 8638 Folio 220.
[2]Certificate of Title Volume 8633 Folio 6.
Glasshouse fronts both King Street and a pedestrian precinct known as the Pitt Street Mall which runs at a right angle to King Street. Skygarden abuts the Pitt Street Mall. This pedestrian precinct lacks ordinary vehicular access. Hence the importance for Skygarden of access across the Glasshouse site to King Street.
The legislation
Section 88B(2) of the Conveyancing Act 1919 (NSW) ("the Conveyancing Act") specifies requirements for the registration of plans which provide…
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
AGLC
Westfield Management Ltd v Perpetual Trustee Co Ltd [2007] HCA 45
Case
[2007] HCA 45
Decision Date
CaseChat Overview and Summary
Westfield Management Ltd (the appellant) appealed to the High Court of Australia against a decision concerning an easement granted over land owned by Perpetual Trustee Co Ltd (the respondent). The dispute centred on the scope of the easement, which granted the appellant the right to "go, pass and repass for all purposes to and from" its dominant tenement over the respondent's servient tenement. The appellant sought to utilise this easement not only for direct access to its dominant tenement but also to access remoter properties that adjoined the dominant tenement.
The High Court was required to determine whether the language of the easement, specifically the phrases "to and from" and "for all purposes," permitted the appellant to use the easement to access these remoter properties. A further issue concerned the admissibility of evidence regarding the intention or contemplation of the parties at the time of or subsequent to the grant of the easement, and the relevance of the Torrens Register in this context.
The Court held that the words "to and from" in the context of an easement grant, when referring to access to a dominant tenement, do not extend to providing access to other, remoter properties that merely adjoin the dominant tenement. The phrase "for all purposes" was interpreted as referring to the purposes for which the dominant tenement itself could be used, not as expanding the physical extent of the access granted. The Court found that evidence of the parties' intentions or contemplations was not admissible to alter the plain meaning of the registered easement.
The appeal was dismissed with costs.
Orders
Orders of the court
Appeal dismissed with costs. (Joint judgment of the Court)
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
GLEESON CJ, GUMMOW, KIRBY, HAYNE AND HEYDON JJ
But none of the foregoing supports the admission in this case of evidence to establish the intention or contemplation of the parties to the grant of the Easement.Conclusion and orders The appeal fails and should be dismissed with costs.
Ratio Decidendi
Legal Principle Established
Established by:
GLEESON CJ, GUMMOW, KIRBY, HAYNE AND HEYDON JJ