Xing v Recorder of Titles and STRATA CORPORATION 141766
[2024] TASSC 50
•3 October 2024
[2024] TASSC 50
| COURT: | SUPREME COURT OF TASMANIA |
| CITATION: | Xing v Recorder of Titles and STRATA CORPORATION 141766, Tasman Heights, Dynnyrne [2024] TASSC 50 |
| PARTIES: | XING, Baocheng |
| v | |
| RECORDER OF TITLES | |
| and | |
| STRATA CORPORATION 141766, | |
| TASMAN HEIGHTS, DYNNYRNE | |
| FILE NO: | 3049/2019 |
| DELIVERED ON: | 3 October 2024 |
| DELIVERED AT: | Hobart |
| HEARING DATE: | 18 September 2024 |
| JUDGMENT OF: | Marshall AJ |
| CATCHWORDS: |
Real Property – Torrens Title – Easements - Extinguishment – Whether easement had been abandoned – Whether plaintiff had not used easement for at least 20 years – Evidence that plaintiff used easement in 2009 and 2010 – Decision of Recorder to cancel easement set aside.
Aust Dig Real Property [1398]
REPRESENTATION:
Counsel:
Applicant: A Walker First Respondent: M Rapley SC Second Respondent: D Morris
Solicitors:
Applicant: Groom Kennedy First Respondent: State Litigation Office Second Respondent: Simmons Wolfhagen
| Judgment Number: | [2024] TASSC 50 |
| Number of paragraphs: | 24 |
Serial No 50/2024 File No 3049/2019
BAOCHENG XING v RECORDER OF TITLES and
STRATA CORPORATION 141766, TASMAN HEIGHTS, DYNNYRNE
| REASONS FOR JUDGMENT | MARSHALL AJ 3 October 2024 |
1 Mr Baocheng Xing is the registered proprietor of land at 9 Lynton Avenue, South Hobart. He purchased the property in mid-2007. The title known as Volume 8611 Folio 1 was registered in his name on 15 June 2007.
2 At the time of the purchase, Mr Xing intended to build a house on the vacant land at the property. He discovered from Title searches conducted by his then solicitor that Volume 8611 Folio 1 carried with it a right of way over land at 10 Waterworks Road, Dynnyrne, which borders 9 Lynton Avenue, to the rear of the South Hobart property. That right of way will be referred to in these reasons as "the easement" or "the right of way".
3 When Mr Xing purchased 9 Lynton Avenue, there was no fence on the boundary between that property and Unit 5, 10 Waterworks Road. There was a fence running along the boundary between 9 and 9A Lynton Avenue, and a wire fence running along the boundary of 10 Waterworks Road. There was no fence within the easement between it and units 1, 2, 3, 4, 5 and 10 at the Waterworks Road property. There were some small plants planted in the easement to form a hedge along Waterworks Road.
4 In or about 2008, Mr Xing inspected the easement for its potential to provide access to 9 Lynton Avenue in the event of building works being performed. In or about 2009, Mr Xing commenced building works at 9 Lynton Avenue. He engaged a surveyor to confirm the location of the easement. The surveyor confirmed the easement was 3.6 metres wide from the rear boundary at 9 Lynton Avenue and that it ran parallel with Lynton Avenue, over the land at units 1, 2, 3, 4 and 5 and the common property at 10 Waterworks Road, all the way down to Waterworks Road. Mr Xing inspected the easement with his surveyor. His surveyor confirmed that it gave him a right of way, enabling him to drive up it, or walk up and down it.
5 In late 2009 or early 2010, Mr Xing walked over the easement several times to access 9 Lynton Avenue during building works, in order to bring building materials to Lynton Avenue. Access otherwise during the building works was difficult.
6 As at October 2017, a fence had been placed on the easement, blocking Mr Xing's right of way along Waterworks Road. Mr Xing contacted the Secretary of the second respondent to let that person know that he was going to remove the fence and replace it with a gate. Mr Xing cut part of the fence out, which blocked his right of way, removed it, cut some of the hedge and pulled out some of the plants that had been planted in the easement.
7 On 7 November 2017, Mr Xing placed a double gate on the spot where he had cut out the fence. He removed trees growing in the easement. He reversed his truck into the easement and filled it with plants that he had removed. Mr Xing accessed his right of way every day thereafter for about two months.
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8 For almost a year after putting in the gate on 7 November 2017, on rain free days, Mr Xing spent up to 90 minutes pulling out plants every day from about 7.00am. At that time, he placed gravel on the easement.
9 In December 2017, Mr Xing's then solicitor advised him that an application had been made to cancel his easement. In late 2018, Mr Xing was informed that his objection to the cancellation application was successful.
10 In early 2019, Mr Xing received a letter from Hobart City Council requesting that he stop landfilling the easement and apply for a driveway permit instead.
11 The first respondent, cancelled the easement in favour of Mr Xing in or about October 2019. This occurred after another application was made by the second respondent to cancel the easement. The reasons for the first respondent doing so are contained in a letter to Mr Xing's then solicitor, dated 13 October 2019. The letter referred to an application by the second respondent to cancel the registration of an easement described as a right of carriageway for certificates of title ending in folios 3 and 4, over a right of way. The first respondent referred to s 108(2)(c) of the Land Titles Act 1980, ("the Act"), which permits the Recorder to cancel the registration of an easement, or part of an easement, if it appears to his satisfaction to have been abandoned. The Recorder can only do so after an application for cancellation is made by a person having an interest in land affected by an easement. The second respondent had such an interest. It applied for the cancellation of the easement affecting Mr Xing's lot. The Recorder did not cancel the easement entirely, but only cancelled the easement insofar as it affected Mr Xing's interests.
12 The first respondent based the decision on the finding that, "There had been a failure to use the easement …for a period of at least 20 years". Section 108(3) of the Act provides that when considering whether an easement has been abandoned, if the Recorder is satisfied that it has not been used for a period of at least 20 years, that is to be treated as conclusive evidence of abandonment.
13 When the second respondent applied for the cancellation of the easement, the first respondent wrote to its solicitors on 17 December 2017, advising that if successful, the application would only result in the easement being removed as it relates to Mr Xing's interests. It gave the second respondent an opportunity to decide whether they wanted to pursue an application with respect to the other interest in the easement. On 18 December 2017, the then solicitors for the second respondent said that their client wished to proceed with the application to cancel the easement in respect to Mr Xing's interest.
14 Section 108(2) of the Act permits the first respondent to cancel the registration of an easement, "in whole or in part" (emphasis added). Counsel for Mr Xing submitted that the application by the second respondent was for the cancellation of the entire easement, not an application to cancel that part of the easement relating to Mr Xing. Notwithstanding that the application was couched in broad terms, the first respondent is empowered, if the elements of the sub-section are satisfied, to cancel part of an easement. I reject the submission put on behalf of Mr Xing in his challenge to the decision of the first respondent that there was no power in the first respondent to cancel the easement, only insofar as it affected Mr Xing's dominant tenement.
15 Mr Xing's legal challenge to the first respondent's decision is made under s 144 of the Act. Under that section, the person aggrieved by an order of the Recorder may summons the first respondent in this Court, requiring the Recorder to justify the order.
16 Counsel for the parties agreed that in deciding a s 144 application, the Court stands in the shoes of the Recorder and makes a decision which it considers the Recorder should have made on the evidence available to the Recorder, supplemented by any relevant further evidence available to the Court. The further relevant evidence before the Court was in affidavit form.
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17 So, the question as to whether the easement should have been cancelled has at its central focus, the factual enquiry concerning whether Mr Xing had abandoned the easement by not using it for at least 20 years. On the material before the Court, the abandonment argument raised by the respondents cannot be sustained. The Court is of that opinion for the following reasons.
18 Mr Xing became entitled to the benefit of the easement in 2007, less than 20 years before the decision of the first respondent, and less than 20 years before the present time. As noted earlier in these reasons, during that time, Mr Xing inspected the easement in 2009 with a surveyor to confirm it gave him a right of way. Mr Xing also gave evidence in his affidavit before this Court, as to using the right of way in late 2009, or early 2010, several times during building works on his property in Lynton Avenue as a means to access his property with building materials. In 2017, Mr Xing removed a fence that was blocking his ability to use the easement. He also removed part of a hedge and plants for the same purpose. He accessed and used the right of way in order to do so. He removed plants in late 2017 and placed gravel on the easement for the purpose of ease of access. As referred to in paragraphs [7] and [8] above, from 7 November 2017, on rain free days, he spent up to 90 minutes pulling out plants which were on the easement, and specifically on 7 November 2017, reversed his truck onto the easement for the purpose of removing plants to facilitate access to his easement. This evidence supports the view that the easement had been used by Mr Xing within the 20 years prior to the successful application to cancel it.
19 In their submissions to the first respondent in November 2017, the solicitors for the second respondent claimed that the easement had not been used for 37 years. They referred to a fence being placed, preventing use of the easement, by the proprietors of 9 Lynton Avenue between 1980 and 2002. Mr Xing did not come into ownership of the property until 2007. At the time of the application to the first respondent by the second respondent, Mr Xing had intermittently accessed the easement and had used it to facilitate the movement of building materials to 9 Lynton Avenue in late 2009 or early 2010. The question for the first respondent at the time of the application to cancel an easement, is not whether at some time in the past the right of way had not been used for 20 years, but whether at the time of the application it had not been used for 20 years.
20 The only evidence before the first respondent, placed by the second respondent, about the failure to use the easement, related to failure to use it prior to Mr Xing's interest in it. It referred to Mr Xing removing a portion of the fence without stating that the fence was blocking his use of the easement.
21 It is unnecessary to deal with the submission of Mr Xing's counsel that an earlier emanation of s 102 referred to "attempt to use" the easement as well as "use", and Mr Xing had attempted to use the easement before the statutory amendment. It is clear on the evidence before the Court that Mr Xing actually used the easement by accessing it for the transport of building materials in late 2009 and early 2010, and later on attempted to remove impediments to effectively use it in the future. The events of late 2009 and/or 2010 alone, are clearly within the 20 year abandonment period.
22 Mr Xing's then solicitors placed a statutory declaration of Mr Xing before the first respondent in September 2018, which referred to building works being commenced in 2009 and having a surveyor confirm his easement entitlement at the time. That statutory declaration goes on to deal with attempts to use the easement by removing plants and part of the fence. It also refers to placing a gate on the right of way. It did not go further, as the evidence before the Court did, and referred to the right of actual access of the easement for the purposes of transporting building materials to the building site at 9 Lynton Avenue. This makes it understandable why the first respondent did not reject out of hand the application of the second respondent. Consequently, the Court is unable to be satisfied that there were no probable grounds for the order made by the first respondent.
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23 The Court invites submissions as to what, if any, other costs order should be made, in accordance with these reasons within fourteen (14) days of the publication of these Reasons for Judgment.
24 In the meantime, the Court will order as follows:
1 The decision of the first respondent to cancel the easement of the applicant is set aside.
2 Written submission on the question of costs, in accordance with these Reasons for Judgment, be provided to the Court within fourteen (14) days of the making of this order.
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