Maloney v Putu Pty Ltd [2023] NSWSC 1148

Maloney v Putu Pty Ltd [2023] NSWSC 1148

Because continuous use of the access road for more than twenty years was admitted and El Rihani did not prove that the use was by permission, the plaintiff established use as of right sufficient for a prescriptive easement over Lot 119. Objectively, the 1978 and 1979 conversations were most likely an acknowledgment of existing and continuing use in a neighbourly context, not a grant of permission; alternatively, any neighbourly indulgence had become use as of right at least twenty years earlier. No order should affect Lot 118 because its registered proprietors had not been joined.

Jurisdiction
Australia
Judgment Date
22 September 2023
Procedural Posture
Equity Real Property List; Claim for Declaration of Easement by Prescription / Principal Judgment After Hearing
Outcome
The Court held that it was appropriate to make an order affecting Lot 119, but not Lot 118, and indicated that the defendant ought pay the plaintiff's costs of the proceedings as agreed or assessed. Final form of orders was deferred for the parties to confer and provide agreed orders or competing short minutes.
Legal Topics
['easements' 'easements by Prescription' 'lost Modern Grant' 'use as of Right' 'permission' 'good Neighbourliness' 'torrens Title' 'omitted Easements']
['land Law' 'real Property'] ['easements' 'easements by Prescription' 'lost Modern Grant' 'use as of Right' 'permission' 'good Neighbourliness' 'torrens Title' 'omitted Easements']

Case Brief

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Procedural Posture

Equity Real Property List; Claim for Declaration of Easement by Prescription / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the use of the access road identified in the plan annexed to the Further Amended Summons filed 28 July 2022 was by permission such that a prescriptive easement over the access road is not established.' 'Whether permission was in fact expressly granted to the plaintiff to use the access road by reason of the conversation between Mr Maloney and Ms Sarian in 1978.' 'If express permission was not granted, whether use of the access road was a neighbourly indulgence which, over time, came to bear the stamp of legal right.' 'Whether an order should affect Lot 118 where the registered proprietors had not been joined as parties.']

Ratio Decidendi

Because continuous use of the access road for more than twenty years was admitted and El Rihani did not prove that the use was by permission, the plaintiff established use as of right sufficient for a prescriptive easement over Lot 119. Objectively, the 1978 and 1979 conversations were most likely an acknowledgment of existing and continuing use in a neighbourly context, not a grant of permission; alternatively, any neighbourly indulgence had become use as of right at least twenty years earlier. No order should affect Lot 118 because its registered proprietors had not been joined.

Court Disposition

The Court held that it was appropriate to make an order affecting Lot 119, but not Lot 118, and indicated that the defendant ought pay the plaintiff's costs of the proceedings as agreed or assessed. Final form of orders was deferred for the parties to confer and provide agreed orders or competing short minutes.

Orders

  • ['The parties are to confer and provide agreed orders including any necessary survey plans giving effect to these reasons to the Associate to Peden J within seven days of this judgment.' 'Should agreement not be possible, competing short minutes, any evidence, and submissions of no more than three pages are to be...