TOMARK PTY LTD and Ors v BELLEVUE CRESCENT PTY LTD and Ors [1999] NSWCA 347

TOMARK PTY LTD and Ors v BELLEVUE CRESCENT PTY LTD and Ors [1999] NSWCA 347

There was sufficient evidence to support the finding that the subject lane, before 1879, was left open and used by the public, justifying its deemed dedication under s 3 of the 1834 Act. The middle of the road rule does not apply based on the construction of the Deed of Partition. The rejection of historian Ms Rosen's evidence was proper under s 79 Evidence Act and did not occasion a miscarriage or substantively affect the outcome. Provisions of the Sydney Corporation Act 1850 could not be raised on appeal and are irrelevant to the statutory dedication issue.

Jurisdiction
Australia
Judgment Date
28 September 1999
Procedural Posture
Civil Appeal / Appeal Decision
Outcome
appeal dismissed
Legal Topics
['dedication of Land' 'construction of Statutory Provisions' 'admissibility of Expert Evidence' 'middle of the Road Rule']
['equity' 'evidence'] ['dedication of Land' 'construction of Statutory Provisions' 'admissibility of Expert Evidence' 'middle of the Road Rule']

Case Brief

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Procedural Posture

Civil Appeal / Appeal Decision

Legal Issues

  1. 1 ['Whether the lane was deemed dedicated to the public under s 3 of the Alignment of Sydney Streets Act 1834' 'Admissibility of historian expert evidence under s 79 Evidence Act 1995' 'Application of the middle of the road rule (ad medium filum rule)' 'Relevance of provisions in the Sydney Corporation Act 1850']

Ratio Decidendi

There was sufficient evidence to support the finding that the subject lane, before 1879, was left open and used by the public, justifying its deemed dedication under s 3 of the 1834 Act. The middle of the road rule does not apply based on the construction of the Deed of Partition. The rejection of historian Ms Rosen's evidence was proper under s 79 Evidence Act and did not occasion a miscarriage or substantively affect the outcome. Provisions of the Sydney Corporation Act 1850 could not be raised on appeal and are irrelevant to the statutory dedication issue.

Court Disposition

appeal dismissed

Orders

  • ['Appeal dismissed with costs']