Parramore v Duggan [1995] HCA 21

High Court of Australia Brennan, Deane, Dawson, Toohey and McHugh JJ Parramore v Duggan (FC95/042) [1995] HCA 21

ORDER

1. Appeal allowed with costs.

2. Set aside the order of the Full Court of the Supreme Court of Tasmania and in lieu thereof order:

(a) Appeal allowed with costs to be taxed.

(b) Set aside the order of Zeeman J made on 17 August 1993 and in lieu thereof order:

(i) Answer the question reserved in the special case as follows:

On the basis of the special case stated and the pleadings as they stand the land described in Folio of the Register Volume 4012 Folio 97 is not subject to a right of way (as described in Folio of the Register Volume 3820 Folio 26 or Conveyance dated the 2nd day of May 1925 or otherwise) appurtenant to the land described in Folio of the Register Volume 3820 Folio 26, save and except to the extent that the Plaintiff's claim is based upon long user or upon a grant of easement by a deed now lost made after the 2nd May 1925.

(ii) Plaintiff to pay the defendant's costs to be taxed.

3. Remit the matter to the Supreme Court of Tasmania to determine any application by the respondent to raise a case based on s 40(3)(e)(ii) of the Land Titles Act 1980 Tas or to add the Recorder of Titles as a party and otherwise to hear and determine the matter according to law.

Cur adv vult

The following written judgments were delivered:—

3 November 1995 Brennan J.

The appellant and respondent are respectively the registered proprietors of estates in fee simple in adjoining parcels of land. The appellant's land was brought under the provisions of the Real Property Act 1862 Tas on 10 March 1980 (the former Act). The respondent's land was brought under the provisions of the Land Titles Act 1980 Tas (the Act) on 11 April 1983. The appellant's land also is now subject to the Act (s 173(2)). The respondent claims to be entitled to an easement over the appellant's land in accordance with a memorial entered upon her certificate of title pursuant to s 43 of the former Act. The appellant denies that claim and relies upon his certificate of title which states that the "encumbrances and interests" to which his estate is subject are "nil".