Bursill Enterprises Pty Ltd v Berger Bros Trading Co Pty Ltd [1971] HCA 9

Bursill Enterprises Pty Ltd v Berger Bros Trading Co Pty Ltd [1971] HCA 9

The memorandum of transfer of 15th May 1872 operated to both extend the right of way and transfer proprietary rights in the building above the right of way. Although the notification on the register referred primarily to an 'extension of right of way,' the reference to the memorandum of transfer was sufficient...

Source-derived case information.

Jurisdiction
Australia
Procedural Posture
Appeal and Cross Appeal / High Court of Australia Judgment
Outcome
Appeal and cross appeal dismissed save for variation of the decretal order as specified.
Legal Topics
['torrens Title' 'registration of Interests' 'easements and Stratum Interests' 'notification on the Register' 'indefeasibility of Title']
['property Law' 'real Property' 'easements'] ['torrens Title' 'registration of Interests' 'easements and Stratum Interests' 'notification on the Register' 'indefeasibility of Title']

Source-derived case record

Summary, issues, holding and outcome

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Procedural Posture

Appeal and Cross Appeal / High Court of Australia Judgment

Legal Issues

  1. 1 ['Whether the rights concerning the building over the right of way are properly classified as an easement or a proprietary interest' 'Whether the interest created by the 1872 memorandum of transfer was duly notified on the register so as to affect purchasers and confer indefeasibility' "Whether Bursill holds the land subject to Berger's claimed interest under the memorandum of transfer"]

Ratio Decidendi

The memorandum of transfer of 15th May 1872 operated to both extend the right of way and transfer proprietary rights in the building above the right of way. Although the notification on the register referred primarily to an 'extension of right of way,' the reference to the memorandum of transfer was sufficient constructive notice to bind successors with respect to the proprietary interest in the building conveyed by the instrument. Thus, Bursill holds the land subject to Berger's interest in relation to the building, but Berger's rights to rebuild are limited to the dimensions of the building as existed in 1872.

Court Disposition

Appeal and cross appeal dismissed save for variation of the decretal order as specified.

Orders

  • ["Decretal order of the Supreme Court of New South Wales varied by: (1) deleting from the first declaration the words 'Notwithstanding the provisions of the Memorandum of Transfer Registered No. 7922 upon the proper construction of the grant of right of way and easement contained in the said transfer' and...