Westfield Management Limited v Perpetual Trustee Company Limited [2007] HCA 45

HIGH COURT OF AUSTRALIA

GLEESON CJ,

GUMMOW, KIRBY, HAYNE AND HEYDON JJ

WESTFIELD MANAGEMENT LIMITED APPELLANT

AND

PERPETUAL TRUSTEE COMPANY LIMITED RESPONDENT

Westfield Management Limited v Perpetual Trustee Company Limited

[2007] HCA 45

3 October 2007

S210/2007

ORDER

Appeal dismissed with costs.

On appeal from the Supreme Court of New South Wales

Representation

B W Walker SC with R G McHugh SC and N J Owens for the appellant (instructed by Speed and Stracey Lawyers)

N C Hutley SC with S Flanigan, J C Giles and S J Free for the respondent (instructed by Deacons Lawyers)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Westfield Management Limited v Perpetual Trustee Company Limited

Real property – Torrens system land – Easements – An easement granted the right to go, pass and repass for all purposes to and from the appellant's dominant tenement over the respondent's servient tenement – The appellant sought to use the easement in order to access remoter properties adjoining the dominant tenement – Whether such use was permitted by the easement.

Real property – Torrens system land – Easements – Construction – Whether the expression "to and from" encompassed access across the dominant tenement to remoter properties – Whether the expression "for all purposes" encompassed access across the dominant tenement to remoter properties.

Evidence – Torrens system land – Easements – Construction – Whether evidence was admissible regarding the intention or contemplation of the parties at the time of, or subsequent to, the grant – Relevance of the Torrens Register.

Words and phrases – "for all purposes", "to and from".

Real Property Act 1900 (NSW), ss 31B, 96B.

Conveyancing Act 1919 (NSW), ss 88B, 181A.

1. GLEESON CJ, GUMMOW, KIRBY, HAYNE AND HEYDON JJ. This litigation concerns the terms of an easement conferring a right of way by means of a vehicular ramp under the servient tenement. What is at stake is access to, from and over several parcels of land in the central business district of the City of Sydney. All of these parcels are registered under the provisions of the Real Property Act 1900 (NSW) ("the RP Act"). The appellant ("Westfield") is the present registered proprietor of the dominant tenement[1] upon which is erected the multi-storey commercial premises known as "Skygarden". The respondent ("Perpetual") is the registered proprietor of the servient tenement[2] upon which is erected the multi-storey commercial premises known as "Glasshouse". 2. Glasshouse fronts both King Street and a pedestrian precinct known as the Pitt Street Mall which runs at a right angle to King Street. Skygarden abuts the Pitt Street Mall. This pedestrian precinct lacks ordinary vehicular access. Hence the importance for Skygarden of access across the Glasshouse site to King Street.