COMSERV v FIGTREE GARDENS [1999] NSWSC 124

COMSERV v FIGTREE GARDENS [1999] NSWSC 124

The true boundary between Lot 1 and Lot 2 as shown on DP 227479 follows the position of the western bank of American Creek as it existed at the time of the original survey (1965), despite inconsistent figured dimensions in the plan. The dimension '336 feet' on the plan was found to be a mistake and does not prevail over the physical boundary as established by surveyor evidence. Extrinsic evidence, including surveyor field notes and later verification, is admissible and necessary to establish the actual subject matter of the plan where ambiguity or error is present.

Parties
Plaintiff: COMSERV (No. 1877) Pty Limited; Defendant: Figtree Gardens Caravan Park & Ors
Jurisdiction
Australia
Judgment Date
26 February 1999
Procedural Posture
Equity Proceedings / Judgment
Outcome
Plaintiff's claim dismissed; costs reserved.
Legal Topics
Land Boundaries, Survey Interpretation, Deposited Plans, Torrens Title, Indefeasibility of Title
Property Law Land Boundaries Survey Interpretation Deposited Plans Torrens Title Indefeasibility of Title

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 14 Party arguments 2 Amounts and remedies 4
Sign in to unlock

Parties

COMSERV (No. 1877) Pty Limited

Plaintiff

Figtree Gardens Caravan Park & Ors

Defendant

Procedural Posture

Equity Proceedings / Judgment

Legal Issues

  1. 1 How is the boundary between Lot 1 and Lot 2 as shown on Deposited Plan 227479 to be ascertained, especially where the 'western bank' of American Creek is stated as the boundary but figured dimensions on the plan may be erroneous or ambiguous?
  2. 2 Does the Plaintiff's Certificate of Title and Deposited Plan entitle it to land further east than indicated by the Defendant, due to alleged errors in the plan?
  3. 3 Can extrinsic evidence be used to clarify or rectify an erroneous or ambiguous plan?

Ratio Decidendi

The true boundary between Lot 1 and Lot 2 as shown on DP 227479 follows the position of the western bank of American Creek as it existed at the time of the original survey (1965), despite inconsistent figured dimensions in the plan. The dimension '336 feet' on the plan was found to be a mistake and does not prevail over the physical boundary as established by surveyor evidence. Extrinsic evidence, including surveyor field notes and later verification, is admissible and necessary to establish the actual subject matter of the plan where ambiguity or error is present.

Court Disposition

Plaintiff's claim dismissed; costs reserved.

Orders

  • The proceedings are dismissed.
  • Costs reserved.