Tiller & Anor v Hawes [2005] NSWSC 1232

New South Wales Supreme Court

CITATION : Tiller & Anor v Hawes [2005] NSWSC 1232

HEARING DATE(S) : 6-7-8 June 2005

JUDGMENT DATE : 2 December 2005

JUDGMENT OF : Smart AJ at 1

DECISION : See para 141

CATCHWORDS : Easement and restrictive covenant - whether two should be taken together - effect of earlier proceedings, points not taken and undertakings given - construction of restrictive covenant having regard to surrounding circumstances - form of relief to be granted

LEGISLATION CITED : Nil

Clos Farming Estates Pty Ltd (Rec. & Man Appt) v Easton & Anor [2001] NSWSC 525; [2002] NSWCA 389 CASES CITED : Harada v Registrar of Titles [1981] VR 743 Re Ellenborough Park [1956] Ch 131

PARTIES : Dean Anthony Tiller and Vicki May Tiller v Vanessa Marie Hawes

FILE NUMBER(S) : SC 2122/04

(P) J R Young COUNSEL : (D) D A Casperson

(P) Karageorge & Co SOLICITORS : (D) Pickering Priestley

LOWER COURT JURISDICTION :

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

SMART AJ

Friday, 2 December 2005 2122/04: Dean Anthony TILLER & Vicki May TILLER v Vanessa Marie HAWES JUDGMENT

1. The plaintiffs and the defendant are the registered proprietors of adjoining blocks of land, each of about 1 hectare in Loftus Road, Crescent Head, being Lots 2 and 1 respectively, DP882231. They are the result of a subdivision of a larger area. The lots are in an attractive area close to a beach. While Lots 1, 3, 4 and 5 have a frontage to Loftus Road, Lot 2 does not. For access from Lot 2 to Loftus Road and vice versa the registered proprietors of Lot 2 depend upon a right of carriageway over Lot 1 extending from Loftus Road to the boundary of Lot 2. The unusual covenant contained in the transfer to the defendant confers extensive rights of use of the carriageway on the plaintiffs and appears to be restrictive of the use of the carriageway by the defendant. There have been bitter disputes between the parties as to the use the covenant permits the defendant to have and as to her actual use. In order to understand this judgment frequent reference will need to be made at an early stage to Exhibit A – the large map showing Lots 1, 2 and 3.