Chick, Victor Horace v Dockray, Margaret Joan

• Jurisdiction: Tasmania
• Judge: Crawford CJ,Porter J,Wood J
• Judgment Date: 06 April 2011
• Court: Full Supreme Court
• Docket Number: 670/2010
• Date: 06 April 2011

[2011] TASFC 1

[2010] TASSC 32

SUPREME COURT OF TASMANIA

Crawford CJ, Porter and Wood JJ

670/2010

Chick, Victor Horace

and

Dockray, Margaret Joan

REPRESENTATION:

Counsel:

Appellant: M E O'Farrell SC, A Buckley

Respondent: P L Jackson

Land Titles Act 1980 (Tas), s40(3)(e)(i).

Bryant v Foot (1867) 2 LR QB 161; Delohery v Permanent Trustee Co of NSW (1904) 1 CLR 283; Parramore v Duggan (1995) 183 CLR 633, referred to.

Aust Dig Real Property [1256]

Westfield Management Ltd v Perpetual Trustee Co Ltd (2007) 233 CLR 528, followed.

Aust Dig Real Property [1399]

Land Titles Act 1980 (Tas), s138I.

Cook v Collection Corporation of Australia Pty Ltd (2007) 17 Tas R 67; Terhidy Minerals Ltd v Norman[1971] 2 QB 528; Mills v Silver[1991] 2 WLR 324; Oakley v Boston[1976] QB 270, referred to.

Natural Forests Pty Ltd v Turner (2004) 13 Tas R 44, distinguished.

Aust Dig Real Property [1399]

Staley v Pivot Group Pty Ltd (No 6) [2010] WASC 228; Clifford v Hoare(1874) LR 9 CP 362; Timpar Nominees Pty Ltd v Archer [2001] WASCA 430; Saggers v Brown (1981) 2 BPR 9329; Berryman v Sonnenschein[2008] NSWSC 213; Butler v Muddle [1995] 6 BPR 13,984; Sertari Pty Ltd v Nirimba Developments Pty Ltd[2007] NSWCA 324; Todrick v Western National Omnibus Company Ltd[1934] Ch 561; Krolczyk v Raffan A62/1991; Williams v James(1867) LR 2 CP 577; Wood v Saunders (1875) 10 LR Ch App 582; Paterson and Barr Ltd v Otago University [1925] NZLR 191, referred to.

Aust Dig Real Property [1491]

Real Property — Torrens title — Indefeasibility of title — Exceptions to indefeasibility — Omitted or misdescribed easement — Easements by implication, prescription etc — Whether easement created under doctrine of lost modern grant an easement arising by implication.

Real Property — Torrens title — Easements — Other matters — Construction - Inadmissibility of extrinsic evidence - Use of truncated portion of right of way to access dominant tenement via diversion over other land of dominant owner — Whether authorised by terms of easement.

Real Property — Torrens title — Easements — Other matters — Jurisdiction of court to declare an entitlement to a right of way created under the doctrine of lost modern grant — Whether jurisdiction removed by Land Titles Act 1980 (Tas), s138I.

Real Property — Easements — Particular easements and rights — Rights of way — Construction — Use of truncated portion of right of way to access dominant tenement via diversion over other land of dominant owner — Whether authorised by terms of easement.

Order of the Court

Appeal dismissed.

REASONS FOR JUDGMENT

FULL COURT

Crawford CJ

1 On 26 July 2010, Evans J ordered that the appellant, Mr Chick, and his servants and agents, were restrained from blocking or obstructing access between portion of a registered easement over the servient tenement owned by him to the dominant tenement, owned by the respondent, Mrs Dockray, via a diversion through neighbouring land. It was also declared that immediately prior to 12 April 2001, the registered proprietor of the dominant tenement was entitled to a right of way, pursuant to the doctrine of lost modern grant, which authorised access to lands of the registered proprietor other than the dominant tenement which was the subject of the registered easement. At all material times, the relevant lands have been registered under the Land Titles Act 1980.

2 Mr Chick appealed against those orders. He argued that indirect access to the dominant tenement from the servient tenement via a diversion was not authorised by the terms of the registered easement. He also argued that an easement created by the operation of the doctrine of lost modern grant could not be recognised over Torrens system land because it was not an exception to the rule of indefeasibility of title in s40. Finally, he argued that the learned judge did not have jurisdiction to declare that Mrs Dockray had an entitlement to an easement by virtue of the doctrine of lost modern grant because of the abolition of the doctrine on 12 April 2001 by the insertion of s138 into the Act by the Land Titles Amendment (Law Reform) Act 2001.

3 For the following reasons, those arguments should be rejected and the appeal should be dismissed.

Facts

4 The land of the appellant, Mr Chick, is the hatched area of land to the north on the plan attached to these reasons. Its northern boundary has a frontage on Lalla Road, which is a public street.

5 The lands of the respondent, Mrs Dockray, consist of five parcels. They are:

• • The ‘dominant tenement’, which is the area with boundaries of six bearings marked ‘A’, ‘B’, ‘C’, ‘D’, ‘E’ and ‘F’. It was purchased by Mrs Dockray's predecessors in title, the Walkers, in 1936.

• • The ‘reserve west’, which is the area of land to the west of the dominant tenement, marked on the plan with perpendicular lines. Its eastern boundary adjoins the western boundary of the dominant tenement at ‘A’ to ‘F’. It was purchased by the Walkers in 1945.

• • The ‘reserve east’, which is the area of land to the east of the dominant tenement, marked on the plan with horizontal lines. Its western boundary adjoins the eastern boundary of the dominant tenement at ‘H’ to ‘C’. It was purchased by the Walkers in 1946.

• • A small triangular shaped piece of land marked ‘N’, ‘E’ and ‘M’ on the plan which will be referred to as ‘the triangle’. It was transferred to the Walkers on 20 April 1948.

• • The ‘diversion land’, which is a triangular area of land to the east of the dominant tenement and to the north of the reserve east and is marked ‘G’, ‘H’ and ‘J’. Part of its western boundary abuts the southern-most part of the eastern boundary of Mr Chick's land. It was purchased by the Walkers and transferred to them on 22 January 1948.

6 Mr Chick's land is subject to an easement running along the eastern boundary of his land from Lalla Road at point ‘Y’ to point ‘B’ where the easement meets the dominant tenement which, on the titles, it serves. The diversion land abuts the southern end of the easement on the eastern side. The easement is shown on the plan as a roadway 7.64 metres wide. It was created by transfer in 1937 to serve the dominant tenement only, that is to say it was not created to serve the reserve west, the reserve east, the triangle or the diversion land.

7 The transfer of the easement was expressed to be for the benefit of the Walkers ‘and the registered proprietor or proprietors for the time being of [the dominant tenement] or any part thereof for his or their tenants servants agents workmen and visitors full and free right and liberty to go pass and repass at all times hereafter and for all purposes and either with or without horses or other animals carts or other carriages motor cars motor lorries and other vehicles into and out of and from such [dominant tenement] or any part thereof through over and along the strip of land thirty-eight links wide extending along the Eastern boundary of’ what is now Mr Chick's land.

8 Shortly prior to January 1948 there was a large landslip in a gully at the southern end of the easement, which rendered the roadway along the southern end of the easement impassable from ‘Z’ to ‘B’. Prior to the landslip, the Walkers had been operating a nursery on all of their lands (other than the diversion land and the triangle) and utilised the easement to access them all, notwithstanding that only the dominant tenement was expressly entitled to the benefit of the easement. After the landslip, the Walkers were advised by an engineer that, due to the instability of the gully, it was undesirable to attempt to rebuild the roadway at the southern end of the easement. As a consequence, the Walkers purchased the diversion land in order to divert the roadway across it and around the landslip to the dominant tenement. A roadway was then constructed around the landslip area from ‘Z’ to ‘Z1’ along the path of a gravel road across the diversion land as it presently exists. That road will be referred to as ‘the diversion’.

9 Since 1948, access between Lalla Road and Mrs Dockray's lands has been via the usable portion of the easement from ‘Y’ to ‘Z’, which will be referred to as ‘the truncated portion of the easement’, and then the diversion.

10 In 1964, Mr Chick purchased his land, excluding the portion subject to the easement but also with the benefit of it. Prior to 3 August 1970, he had purchased the land containing the easement and he remains the owner of both pieces of land, which collectively I will refer to as his land. Throughout those transactions, the dominant tenement retained an entitlement to the right of way comprised by the registered easement.

11 Apart from Mr Chick's land, all of the land to which I have referred was owned by the Walkers and their heirs until it was transferred to Mrs Dockray in 2007. The total area of all of the Walkers' lands was about 44 hectares. The titles to the various portions were combined into one title in 1954. For many years a rhododendron nursery was operated from the lands and then it became a rhododendron reserve. It became known in the district as the rhododendron reserve. From at least 1949, Mrs Dockray's predecessors in title used the truncated portion of the easement, coupled with the diversion, to access the rhododendron reserve.

12 The most recent title to the rhododendron reserve is certificate of title volume 198595 folio 1. Its plan is the basis of the plan attached to these reasons. The lettering in the description of the easement accords with the lettering on that plan.

13 There is no substantive difference between the easement as recorded on the title of each party. The easement recorded on the title of Mrs Dockray, volume 198595 folio 1, is:

‘BENEFITING EASEMENT: (appurtenant to the land marked A.B.C.D.E.F. on Plan No 198595) the full and free right and liberty for the Registered Proprietors of the said land within...