McKeand v Thomas [2006] NSWSC 1028

McKeand v Thomas [2006] NSWSC 1028

There was an agreement between Mr McKeand and Mr Thomas for the grant of an easement, but Mr Thomas lacked authority to bind Mrs Thomas, and Mrs Thomas did not ratify the agreement with sufficient knowledge of its terms. The plaintiffs are entitled to equitable relief by way of an injunction to restrain revocation of the licence as ratified (unless they elect damages), but not to an easement or specific performance. The plaintiffs succeed in claim for damages for breach of warranty of authority against Mr Thomas. Relief under section 88K Conveyancing Act 1919 is refused as the easement is not 'reasonably necessary' for effective use or development.

Jurisdiction
Australia
Judgment Date
25 October 2006
Procedural Posture
Equity Proceedings / Judgment After Trial
Outcome
Parties to bring in Short Minutes of Order; see judgment for directions.
Legal Topics
['easements' 'implied Easements' 'ostensible Authority' 'ratification' 'proprietary Estoppel' 'licences' 'revocation of Licences' 'section 88 K Conveyancing Act 1919' 'breach of Warranty of Authority']
['contract Law' 'real Property' 'equity' 'agency'] ['easements' 'implied Easements' 'ostensible Authority' 'ratification' 'proprietary Estoppel' 'licences' 'revocation of Licences' 'section 88 K Conveyancing Act 1919' 'breach of Warranty of Authority']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Equity Proceedings / Judgment After Trial

Legal Issues

  1. 1 ['Whether an enforceable agreement for easement was reached between plaintiffs and any defendant' 'Whether Mr Thomas had authority to bind Mrs Thomas' 'Whether Mrs Thomas ratified the agreement' 'Whether proprietary or equitable estoppel prevents revocation of the licence' 'Whether relief under section 88K Conveyancing Act 1919 should be granted' 'Whether damages are available for breach of warranty of authority or negligent misrepresentation']

Ratio Decidendi

There was an agreement between Mr McKeand and Mr Thomas for the grant of an easement, but Mr Thomas lacked authority to bind Mrs Thomas, and Mrs Thomas did not ratify the agreement with sufficient knowledge of its terms. The plaintiffs are entitled to equitable relief by way of an injunction to restrain revocation of the licence as ratified (unless they elect damages), but not to an easement or specific performance. The plaintiffs succeed in claim for damages for breach of warranty of authority against Mr Thomas. Relief under section 88K Conveyancing Act 1919 is refused as the easement is not 'reasonably necessary' for effective use or development.

Court Disposition

Parties to bring in Short Minutes of Order; see judgment for directions.

Orders

  • ['Parties to make appointment within 14 days with Associate to bring in Short Minutes of Order to give effect to reasons and to address interest and costs.' 'Plaintiffs to elect between injunction restraining revocation of the licence or damages against Mr Thomas; precise relief to be settled.']