Campbell v Hamilton [2019] NSWCA 22

Campbell v Hamilton [2019] NSWCA 22

The signed Transfer Granting Easement in Schedule B to the Deed clearly indicated the benefited land as the lower part of Lot 1153 shown as Lot 1150 on the annexed proposed subdivision plan, despite the reference to approximate area and possible minor boundary adjustments. In any event, the Deed, construed in light of the objective surrounding circumstances including the Heads of Agreement, required Mr Campbell to grant an easement that would run with the land and bind successors in title, and the further assurance covenant would oblige him to execute a registrable instrument if needed. Therefore cancellation of the registered transfer was not warranted, although the primary judge's...

Jurisdiction
Australia
Judgment Date
25 February 2019
Procedural Posture
Appeal Concerning Easement, Construction of Deed and Application for Cancellation of Registered Dealing / Appeal From Supreme Court of New South Wales, Equity Division, Slattery J, [2018] NSWSC 806
Outcome
Appeal allowed in part; declaration (2) set aside; otherwise appeal dismissed with costs.
Legal Topics
['easements' 'conveyancing Act 1919 (nsw) S 88' 'construction of Deed' 'extrinsic Evidence' 'specific Performance' 'real Property Act 1900 (nsw) S 138' 'further Assurance Covenant']
['land Law' 'contracts' 'equity'] ['easements' 'conveyancing Act 1919 (nsw) S 88' 'construction of Deed' 'extrinsic Evidence' 'specific Performance' 'real Property Act 1900 (nsw) S 138' 'further Assurance Covenant']

Case Brief

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Procedural Posture

Appeal Concerning Easement, Construction of Deed and Application for Cancellation of Registered Dealing / Appeal From Supreme Court of New South Wales, Equity Division, Slattery J, [2018] NSWSC 806

Legal Issues

  1. 1 ['Whether Mr Campbell agreed to grant an easement that would bind his successors in title.' 'Whether the Transfer Granting Easement signed by Mr Campbell clearly indicated the land to which the benefit of the easement was appurtenant for the purpose of s 88(1)(a) of the Conveyancing Act 1919 (NSW).' 'Whether extrinsic evidence of the objective context, including the Heads of Agreement, could be used to construe the Deed rather than the unregistered transfer instrument alone.' 'Whether, if the signed transfer did not comply with s 88(1)(a), the Hamiltons would be entitled to specific performance requiring Mr Campbell to execute a registrable transfer that did bind successors in title.' 'Whether the registered Transfer Granting Easement should be cancelled under s 138 of the Real Property Act 1900 (NSW).']

Ratio Decidendi

The signed Transfer Granting Easement in Schedule B to the Deed clearly indicated the benefited land as the lower part of Lot 1153 shown as Lot 1150 on the annexed proposed subdivision plan, despite the reference to approximate area and possible minor boundary adjustments. In any event, the Deed, construed in light of the objective surrounding circumstances including the Heads of Agreement, required Mr Campbell to grant an easement that would run with the land and bind successors in title, and the further assurance covenant would oblige him to execute a registrable instrument if needed. Therefore cancellation of the registered transfer was not warranted, although the primary judge's...

Court Disposition

Appeal allowed in part; declaration (2) set aside; otherwise appeal dismissed with costs.

Orders

  • ['Appeal allowed in part.' 'Set aside declaration (2) made on 4 June 2018.' 'Otherwise appeal dismissed.' "Appellant pay the respondent's costs of the appeal."]