Starr v George [2019] NSWSC 60

Starr v George [2019] NSWSC 60

The evidence showed historical conveyances of the George Property from 1910 to 1988 subject to an existing right of way by user in a location consistent with the claimed right of way, and continuous use of the right of way to the Starr Property since about 1912 without permission or complaint. That evidence supported an inference of an express grant before conversion to Torrens Title or, alternatively, an easement by prescription, making it appropriate to make the declaration by consent.

Jurisdiction
Australia
Judgment Date
07 February 2019
Procedural Posture
Equity Real Property List; Proceedings for Declaratory Relief Concerning a Right of Way Easement / Principal Judgment; Declaration and Orders by Consent
Outcome
Declaration and orders made by consent; Statement of Claim and Statement of Cross-Claim otherwise dismissed.
Legal Topics
['easements' 'right of Carriageway' 'express Grant' 'prescriptive Easement' 'torrens Title' 'consent Declarations']
['real Property' 'equity'] ['easements' 'right of Carriageway' 'express Grant' 'prescriptive Easement' 'torrens Title' 'consent Declarations']

Case Brief

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Procedural Posture

Equity Real Property List; Proceedings for Declaratory Relief Concerning a Right of Way Easement / Principal Judgment; Declaration and Orders by Consent

Legal Issues

  1. 1 ['Whether the Court should make a declaration by consent that a right of carriageway 10 metres wide burdens Lot 1 in DP 783204 and benefits Lot 212 in DP 844257.' 'Whether the evidence supported an inference of an express grant of an easement before conversion of the George Property to Torrens Title or, alternatively, an easement by prescription.' 'Whether consequential orders should be made for registration of the easement.']

Ratio Decidendi

The evidence showed historical conveyances of the George Property from 1910 to 1988 subject to an existing right of way by user in a location consistent with the claimed right of way, and continuous use of the right of way to the Starr Property since about 1912 without permission or complaint. That evidence supported an inference of an express grant before conversion to Torrens Title or, alternatively, an easement by prescription, making it appropriate to make the declaration by consent.

Court Disposition

Declaration and orders made by consent; Statement of Claim and Statement of Cross-Claim otherwise dismissed.

Orders

  • ['Declare that the area described as "proposed right of carriageway 10 wide" shown in the Plan of Survey annexed to the orders and marked "A" is a right of carriageway 10 metres wide burdening Lot 1 in DP 783204 and benefiting Lot 212 in DP 844257.' 'Order that the Registrar General, upon lodgement of the Plan in...