Maher v Bayview Golf Club [2004] NSWSC 275

Maher v Bayview Golf Club [2004] NSWSC 275

The plaintiff has acquired by prescription a right of way exercisable day and night for the purposes of using the dominant tenement as a dwelling, with a width sufficient for two vehicles to pass, and this benefit is available for any lots into which the dominant tenement is subdivided, subject to reasonable regulation by the servient owner (such as fencing or gates, provided access is maintained by provision of keys), and such easement is not curtailed by restriction to daylight hours, restriction to one dwelling, or by incidental use of commercial or industrial vehicles required in ordinary residential use.

Jurisdiction
Australia
Judgment Date
04 June 2004
Procedural Posture
Equity / Judgment After Final Hearing
Outcome
Prescriptive easement established.
Legal Topics
['prescriptive Easements' 'doctrine of Lost Modern Grant' 'acquisition of Easements by Prescription' 'scope of Prescriptive Easement' 'subdivision and Benefit of Easement' 'abandonment of Easements']
['real Property' 'equity'] ['prescriptive Easements' 'doctrine of Lost Modern Grant' 'acquisition of Easements by Prescription' 'scope of Prescriptive Easement' 'subdivision and Benefit of Easement' 'abandonment of Easements']

Case Brief

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Procedural Posture

Equity / Judgment After Final Hearing

Legal Issues

  1. 1 ["What is the scope of the prescriptive right of way over the defendant's land to which the plaintiff is entitled?" 'Does the prescriptive right of way allow use at night and by multiple vehicles?' 'Does the benefit of the easement extend to potential subdivided portions of the dominant tenement?' 'Can commercial or industrial use expand the scope of the prescriptive easement?' 'Was any part of the easement abandoned?' 'What are the registration and enforceability requirements for the prescriptive easement?']

Ratio Decidendi

The plaintiff has acquired by prescription a right of way exercisable day and night for the purposes of using the dominant tenement as a dwelling, with a width sufficient for two vehicles to pass, and this benefit is available for any lots into which the dominant tenement is subdivided, subject to reasonable regulation by the servient owner (such as fencing or gates, provided access is maintained by provision of keys), and such easement is not curtailed by restriction to daylight hours, restriction to one dwelling, or by incidental use of commercial or industrial vehicles required in ordinary residential use.

Court Disposition

Prescriptive easement established.

Orders

  • ['Declare the plaintiff is entitled to a right of way appurtenant to Lot 1 in DP 230607, over part of Lot 2 in DP 230607, exercisable at all times day and night, with or without vehicles or animals, for purposes of use as a dwelling, in the location and width described by the Paul Keen & Company plan dated 5 October...