NSW Caselaw
Reported Decision : (2007) NSW Conv R 56-170 (2007) ANZ Conv R 103
New South Wales Court of Appeal
CITATION: Perpetual Trustee Company Limited v. Westfield Management Limited [2006] NSWCA 337
HEARING DATE(S): 9 and 10 November 2006
JUDGMENT DATE: 1 December 2006
JUDGMENT OF: Beazley JA at 1; Hodgson JA at 2; Tobias JA at 71
DECISION: 1. Appeal allowed. 2. Orders below set aside, and in lieu thereof order that the summons be dismissed with costs. 3. Respondent to pay the appellant's costs of the appeal.
CATCHWORDS: REAL PROPERTY - EASEMENTS - Construction and effect - Contemplation of parties as to use of easement - Not to be considered separately from construction of the easement having regard to the circumstances relevant to that construction - Not otherwise to be the subject of extrinsic evidence - Factors relevant to the construction of easements, including the requirement that the easement be for the benefit of the dominant tenement.
Alvis v. Harrison (1991) 62 P&CR 10 Attorney-General v. Horner (No.2) [1913] 2 Ch. 140 Auburn Municipal Council v. Szabo (1971) 67 LGRA 427 Bracewell v. Appleby [1975] Ch. 418 British Railways Board v. Glass [1965] 1 Ch. 538 Cannon v. Villars (1878) 8 Ch.D. Codelfa Constructions Pty. Limited v. State Rail Authority of NSW (1982) 149 CLR 337 Gallagher v. Rainbow (1994) 179 CLR 624 Harris v. Flower (1904) 74 LJ Ch 127 House of Peace Pty. Limited v. Bankstown City Council [2000] NSWCA 44, (2000) 48 NSWLR 498 Jelbert v. Davis [1968] 1 WLR 589; [1968] 1 All ER 1182 National Trust v. White [1987] 1 WLR 907 Nickerson v. Barraclough [1980] Ch. 325 Owners Corporation - Strata Plan No. 8450 v Owners Corporation - Strata Plan No. 54547 [2002] NSWSC 780 CASES CITED: Paterson & Barr Limited v. University of Otago [1925] NZLR 191 Peacock v. Custins [2001] 2 All ER 827 Re Ellenborough Park [1956] Ch 131 Robinson v. Bailey [1948] 2 All ER 791 Shean Pty. Limited v. Owners of Corinne Court [2001] WASCA 311 Simpson v. Mayor Of Godmanchester (1897] AC 696 Skull v. Glenister 33 LJCP 185; 16 CB (NS) 81 South Eastern Railway Company v. Cooper [1924] 1 Ch. 211 Strata Plan No.8450 [2002] NSWSC 780 The Shannon Limited v. Venner Limited [1965] I Ch. 682 Todrick v. Western National Omnibus Co. Limited [1934] 1 Ch. 561 Toll (FGCT) Pty. Limited v. Alphapharm Pty. Limited [2004] HCA 52, (2004) 219 CLR 165 United Land Company v. Great Eastern Railway Company (1875) 10 Ch.App. 586 Waterpark v. Fennell (1859) 7 HLC 650 White v. Grand Hotel Eastbourne Limited (1913) 1 Ch. 113 William v. James (1867) LR 2 CP 577
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