High Court of Australia
High Court of Australia Barwick C.J. Menzies and Windeyer JJ. Bursill Enterprises Pty Ltd v Berger Bros Trading Co Pty Ltd [1971] HCA 9
ORDER Decretal order of the Supreme Court of New South Wales varied by
(1) deleting from the first declaration the words "Notwithstanding the provisions of the Memorandum of Transfer Registered No. 7922 upon the proper construction of the grant of right of way and easement contained in the said transfer"; and substituting therefore the words "Upon the proper construction of the Memorandum of Transfer dated 15th May 1872, duly registered under the provisions of the Real Property Act 1900 ".
(2) deleting from the second declaration the words "and for the purpose of such support to have the present wall maintained"; and substituting therefor "and for the purpose of such support to have the present wall remain".
(3) deleting the third declaration and substituting therefor a declaration that the plaintiff is entitled to demolish existing building erected over the area of the right of way created by the indentures of lease and release made respectively on 16th and 17th June 1840 and is entitled to build in the place of such building so demolished a building, not less than 12 feet above the ground, nor more than the height or total area of the existing building.
Otherwise appeal and cross appeal dismissed.
Cur. adv. vult.
The following written judgments were delivered:—
1971, April 8 Barwick C.J.
The facts and circumstances necessary to be known for the resolution of this appeal fully appear in the reasons for judgment prepared by my brothers Menzies and Windeyer. I have no occasion to repeat them.
In my opinion, the memorandum of transfer dated 15th May 1872 purported both to extend the easement created in 1840 to the extent described in the memorandum and also to transfer title to the space occupied then by the building over the existing easement and to confer the specified rights of demolition and of rebuilding.
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