Sertari Pty Ltd v Nirimba Developments Pty Ltd [2007] NSWCA 324

Sertari Pty Ltd v Nirimba Developments Pty Ltd [2007] NSWCA 324

The clear and unqualified words of the grant provided for use at all times and for all purposes by persons connected with the dominant tenement; thus, there was no excessive user and no lawful reason for refusal of consent. Extrinsic evidence beyond the physical characteristics was not admissible. The servient owner was required to give its consent to the development application.

Parties
Appellant: Sertari Pty Limited; Respondent: Nirimba Developments Pty Limited
Jurisdiction
Australia
Judgment Date
15 November 2007
Procedural Posture
Civil Appeal / Judgment on Appeal From Supreme Court – Equity Division
Outcome
Appeal dismissed with costs
Legal Topics
Easements, Torrens System, Development Application, Right of Carriageway, Obligation to Consent
Property Law Easements Torrens System Development Application Right of Carriageway Obligation to Consent

Case Brief

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Parties

Sertari Pty Limited

Appellant

Nirimba Developments Pty Limited

Respondent

Procedural Posture

Civil Appeal / Judgment on Appeal From Supreme Court – Equity Division

Legal Issues

  1. 1 Whether extrinsic evidence is admissible in construing easements under the Torrens System
  2. 2 Whether the proposed user of the right of carriageway is excessive
  3. 3 Whether the servient owner can be required to consent to a development application by the dominant owner

Ratio Decidendi

The clear and unqualified words of the grant provided for use at all times and for all purposes by persons connected with the dominant tenement; thus, there was no excessive user and no lawful reason for refusal of consent. Extrinsic evidence beyond the physical characteristics was not admissible. The servient owner was required to give its consent to the development application.

Court Disposition

Appeal dismissed with costs

Orders

  • Appeal dismissed with costs