Fenwick v Wambo Coal Pty Ltd (No. 3) [2011] NSWSC 788

Supreme Court New South Wales

Medium Neutral Citation: Fenwick v Wambo Coal Pty Ltd (No. 3) [2011] NSWSC 788 Decision date: 29 July 2011 Before: White J Decision: Stand the proceedings over to a convenient time for counsel for the plaintiff to bring in short minutes of order consistent with these reasons. Catchwords: REAL PROPERTY - easements - right of carriageway - whether defendant contractually bound to grant a registered easement to provide for relocation and extension of existing right of way - where registered right of way gave plaintiff access over defendant's land to public roads leading to nearby town rendered impassable by defendant - where plaintiff gave only partial assent to proposal for relocation and extension and no confirmation or suggestion that agreement had been made - no offer or acceptance leading to contract for relocation and extension of right of way - no consideration for variation of right of way - no contract for grant of extended right of way

REAL PROPERTY - easements - right of carriageway - equitable estoppel - whether defendant estopped from denying that plaintiff and his successor in title are entitled to extension of existing right of way - where registered right of way gave plaintiff access over defendant's land to public roads leading to nearby town rendered impassable by defendant - where defendant induced plaintiff to assume or expect that he would be entitled to use relocated and extended right of way - where plaintiff both acted on assumption that he was entitled to use relocated and extended right of way by using it and abstaining from taking steps in enforcing his entitlement to use existing right of way to obtain access to public roads leading to nearby town - all necessary elements of equitable estoppel satisfied - defendant estopped from denying the plaintiff is entitled to relocated and extended right of way - terms of extension of easement should follow terms of registered easement