Campbell v McGrath [2005] NSWSC 496

Campbell v McGrath [2005] NSWSC 496

The plaintiffs failed to prove an express or implied agreement or estoppel, but the existing formed driveway over Lot 12 was a continuous and apparent quasi-easement used for Lot 6 while both lots were in common ownership, was reasonably necessary for the reasonable enjoyment of Lot 6, and the simultaneous transfers of Lots 6 and 12 by the common vendor justified implying both a grant benefiting Lot 6 and a corresponding burden on Lot 12. The defendants, as simultaneous transferees rather than subsequent purchasers, were subject to enforceable in personam equitable rights notwithstanding the Real Property Act 1900.

Jurisdiction
Australia
Judgment Date
27 May 2005
Procedural Posture
Equity Division Proceedings Concerning Claimed Right of Way/easement Over Torrens Title Land and Cross Claim / Judgment After Hearing; Short Minutes to Be Brought in
Outcome
Plaintiffs succeeded on the claim to an easement by implication; short minutes to be brought in.
Legal Topics
['easements' 'implied Easement Under Wheeldon V Burrows' 'easement by Estoppel' 'statute of Frauds' 'in Personam Exception to Indefeasibility' 'right of Way']
['real Property' 'equity' 'torrens Title'] ['easements' 'implied Easement Under Wheeldon V Burrows' 'easement by Estoppel' 'statute of Frauds' 'in Personam Exception to Indefeasibility' 'right of Way']

Case Brief

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Procedural Posture

Equity Division Proceedings Concerning Claimed Right of Way/easement Over Torrens Title Land and Cross Claim / Judgment After Hearing; Short Minutes to Be Brought in

Legal Issues

  1. 1 ['Whether the defendants agreed, expressly or impliedly, to grant the plaintiffs a right of way over Lot 12 in favour of Lot 6.' 'Whether any alleged agreement to create the easement was unenforceable for want of writing under ss.54A and 23C of the Conveyancing Act 1919.' "Whether an easement arose by equitable estoppel from the defendants' conduct or acquiescence in the plaintiffs' use of the driveway." 'Whether a right of way over Lot 12 in favour of Lot 6 arose by implication of law under the rule in Wheeldon v Burrows in circumstances of simultaneous sale and transfer by a common vendor to separate purchasers.' 'Whether the Real Property Act 1900, including s.42, prevented enforcement of an implied easement over Torrens title land.']

Ratio Decidendi

The plaintiffs failed to prove an express or implied agreement or estoppel, but the existing formed driveway over Lot 12 was a continuous and apparent quasi-easement used for Lot 6 while both lots were in common ownership, was reasonably necessary for the reasonable enjoyment of Lot 6, and the simultaneous transfers of Lots 6 and 12 by the common vendor justified implying both a grant benefiting Lot 6 and a corresponding burden on Lot 12. The defendants, as simultaneous transferees rather than subsequent purchasers, were subject to enforceable in personam equitable rights notwithstanding the Real Property Act 1900.

Court Disposition

Plaintiffs succeeded on the claim to an easement by implication; short minutes to be brought in.

Orders

  • ['The plaintiffs are entitled to relief to the effect of a declaration that they are entitled to a right of way over the identified part of Lot 12, an order that the defendants execute a registrable instrument granting a right of carriageway appurtenant to Lot 6, and orders restraining the defendants from preventing...