Hare v van Brugge [2013] NSWCA 74

Hare v van Brugge [2013] NSWCA 74

Because the inclinator, including its carriage, was accepted to be a fixture forming part of the servient tenement and easement site, the registered easement granting a right to go, pass and repass over that land allowed the respondents to pass and repass over the inclinator structure and by means of the inclinator carriage. The respondents had no entitlement to require the appellants to supply electricity needed to operate the inclinator, because neither party was obliged to maintain or keep it operative, although each was entitled to supply electricity for that party's reasonable use.

Jurisdiction
Australia
Judgment Date
16 April 2013
Procedural Posture
Appeal Concerning Easement Rights Over Real Property / Court of Appeal Appeal From Orders Made in the Equity Division of the Supreme Court of New South Wales
Outcome
Appeal otherwise dismissed, with limited variations to the Equity Division orders concerning electricity supply; appellants ordered to pay the respondents' costs of the appeal.
Legal Topics
['easements' 'right of Carriageway' 'fixtures' 'torrens System Land' 'construction of Registered Easement Terms' 'ancillary Rights to Repair and Maintain Improvements' 'electricity Supply to Inclinator']
['real Property'] ['easements' 'right of Carriageway' 'fixtures' 'torrens System Land' 'construction of Registered Easement Terms' 'ancillary Rights to Repair and Maintain Improvements' 'electricity Supply to Inclinator']

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Procedural Posture

Appeal Concerning Easement Rights Over Real Property / Court of Appeal Appeal From Orders Made in the Equity Division of the Supreme Court of New South Wales

Legal Issues

  1. 1 ['Whether the terms of the easement entitled the respondents, as owners of the dominant tenement, to use the electrically driven inclinator on the servient tenement.' 'Whether the Court could consider the physical characteristics of the dominant and servient tenements when construing the registered easement.' "Whether discontinuing the supply of electricity to the inclinator constituted an actionable interference with the respondents' easement rights."]

Ratio Decidendi

Because the inclinator, including its carriage, was accepted to be a fixture forming part of the servient tenement and easement site, the registered easement granting a right to go, pass and repass over that land allowed the respondents to pass and repass over the inclinator structure and by means of the inclinator carriage. The respondents had no entitlement to require the appellants to supply electricity needed to operate the inclinator, because neither party was obliged to maintain or keep it operative, although each was entitled to supply electricity for that party's reasonable use.

Court Disposition

Appeal otherwise dismissed, with limited variations to the Equity Division orders concerning electricity supply; appellants ordered to pay the respondents' costs of the appeal.

Orders

  • ['Order (2) made in the Equity Division on 20 December 2011 is varied by omitting the words "including by disconnecting the supply of electricity to the Inclinator".' 'The Annexure "A" to the orders made in the Equity Division on 20 December 2011 is varied by adding to paragraph (9) thereof, immediately after the...