HANDLEY & Anor v GUNNER [2008] NSWCA 113

HANDLEY & Anor v GUNNER [2008] NSWCA 113

Clause 5.1.3, construed in the context of the whole Deed and its enduring scheme, entitled the appellants to require the respondent to provide a substitute Brooks Transfer when there was a genuine reason to replace the existing executed transfer, including changes to title particulars and Land Titles Office forms. The respondent's obligations were not spent by the 1995 documents, the requested 2006 transfer was within the contractual purpose, and no implied term required the power under cl 5.1.3 to be exercised within a reasonable time from the date of the Deed; alternatively, no unreasonable time had elapsed. Specific performance was therefore appropriate.

Jurisdiction
Australia
Judgment Date
28 May 2008
Procedural Posture
Appeal in Proceedings Seeking Orders in the Nature of Specific Performance of a Deed Concerning Easements and Rights of Way / Appeal From Orders of Young CJ in Eq in the Supreme Court Equity Division Dismissing the Proceedings
Outcome
Appeal upheld
Legal Topics
['easements and Rights of Way' 'specific Performance' 'construction and Interpretation of Deeds' 'implied Term as to Reasonable Time' 'duration of Contractual Obligations' 'substitute Transfer Granting Easement']
['real Property' 'contracts' 'equity'] ['easements and Rights of Way' 'specific Performance' 'construction and Interpretation of Deeds' 'implied Term as to Reasonable Time' 'duration of Contractual Obligations' 'substitute Transfer Granting Easement']

Case Brief

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Procedural Posture

Appeal in Proceedings Seeking Orders in the Nature of Specific Performance of a Deed Concerning Easements and Rights of Way / Appeal From Orders of Young CJ in Eq in the Supreme Court Equity Division Dismissing the Proceedings

Legal Issues

  1. 1 ["Whether the respondent's obligations under cl 5 of the 28 February 1994 Deed were spent by earlier execution and delivery of transfer documents." 'Whether cl 5.1.3 required the respondent to execute only a document identical to the original Schedule Five Brooks Transfer or permitted a substitute transfer reflecting current title and Land Titles Office requirements.' 'Whether a notice or demand under cl 5.1.3 had to be given within a reasonable time from the date of the Deed and, if so, whether an unreasonable time had elapsed.' 'Whether public policy concerning restraints on alienation invalidated or affected enforcement of the Deed.']

Ratio Decidendi

Clause 5.1.3, construed in the context of the whole Deed and its enduring scheme, entitled the appellants to require the respondent to provide a substitute Brooks Transfer when there was a genuine reason to replace the existing executed transfer, including changes to title particulars and Land Titles Office forms. The respondent's obligations were not spent by the 1995 documents, the requested 2006 transfer was within the contractual purpose, and no implied term required the power under cl 5.1.3 to be exercised within a reasonable time from the date of the Deed; alternatively, no unreasonable time had elapsed. Specific performance was therefore appropriate.

Court Disposition

Appeal upheld

Orders

  • ['Appeal upheld.' 'Set aside orders dismissing the proceedings with costs made on 14 June 2007.' 'In place of those orders, order that the defendant shall within 21 days execute and deliver to the appellants a signed and witnessed form of Transfer Granting Easement so as to comply with cl 5.1 of the Deed as...