Campbell v Hamilton & Ors [2018] NSWSC 806

Campbell v Hamilton & Ors [2018] NSWSC 806

On the true construction of the 2016 Deed, read with its annexures and in light of the 2015 Heads and surrounding circumstances, the parties intended to grant an easement rather than a mere personal licence. The Schedule B dealing sufficiently identified the lower part of Lot 1153 intended to benefit from the easement when Annexures B and C were read together; the 3,649 square metre reference was a typographical or transcription error that could be disregarded, and the amendments made for registration gave effect to the rights promised by the 2016 Deed. The Hamiltons were entitled to the registered easement, had not acted unconscionably, and Mr Campbell was not entitled to cancellation...

Jurisdiction
Australia
Judgment Date
04 June 2018
Procedural Posture
Equity Proceedings Concerning Validity and Construction of a Registered Easement and Related Cross Claim / Principal Judgment After Hearing
Outcome
Declarations made in favour of the first and second defendants/cross-claimants; the plaintiff's summons and statement of claim dismissed; plaintiff/cross-defendant to pay the defendants'/cross-claimants' costs subject to any special costs order application.
Legal Topics
['easements' 'construction of Deed of Settlement' 'torrens Title Registration' 'conveyancing Act 1919 S 88 and S 88 K' 'real Property Act 1900 S 138' 'specific Performance' 'further Assurances' 'personal Equity or in Personam Right' 'costs']
['real Property' 'equity' 'contract Law' 'civil Procedure'] ['easements' 'construction of Deed of Settlement' 'torrens Title Registration' 'conveyancing Act 1919 S 88 and S 88 K' 'real Property Act 1900 S 138' 'specific Performance' 'further Assurances' 'personal Equity or in Personam Right' 'costs']

Case Brief

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Procedural Posture

Equity Proceedings Concerning Validity and Construction of a Registered Easement and Related Cross Claim / Principal Judgment After Hearing

Legal Issues

  1. 1 ["Whether the 2015 Heads and the 2016 Deed granted an easement over Mr Campbell's land or only conferred personal rights of access on the Hamiltons." 'Whether the Schedule B dealing clearly indicated the dominant tenement sufficiently for the purposes of Conveyancing Act 1919, s 88.' 'Whether amendments made before registration of the Transfer Granting Easement were authorised by, and gave effect to, the 2016 Deed.' 'Whether the registered easement AM160015N should be cancelled under Real Property Act 1900, s 138.' 'Whether the 2016 Deed binds successors in title and whether the registered easement is valid and enforceable.']

Ratio Decidendi

On the true construction of the 2016 Deed, read with its annexures and in light of the 2015 Heads and surrounding circumstances, the parties intended to grant an easement rather than a mere personal licence. The Schedule B dealing sufficiently identified the lower part of Lot 1153 intended to benefit from the easement when Annexures B and C were read together; the 3,649 square metre reference was a typographical or transcription error that could be disregarded, and the amendments made for registration gave effect to the rights promised by the 2016 Deed. The Hamiltons were entitled to the registered easement, had not acted unconscionably, and Mr Campbell was not entitled to cancellation...

Court Disposition

Declarations made in favour of the first and second defendants/cross-claimants; the plaintiff's summons and statement of claim dismissed; plaintiff/cross-defendant to pay the defendants'/cross-claimants' costs subject to any special costs order application.

Orders

  • ['Declare that the Deed of Settlement and Release made between the plaintiff and the defendants and dated 14 November 2016, on its true construction, transfers the rights as set out in the Transfer Granting Easement registered number AM160015.' 'Declare that on its true construction the 2016 Deed binds successors in...