Rixon v Horseshoe Pastoral Co Pty Ltd [2017] NSWSC 1293

Supreme Court New South Wales

Medium Neutral Citation: Rixon v Horseshoe Pastoral Co Pty Ltd [2017] NSWSC 1293 Hearing dates: 12, 13, 14, 15 July 2016 (Batemans Bay); 26 July 2016 (Sydney) Date of orders: 26 September 2017 Decision date: 26 September 2017 Jurisdiction: Equity Before: Brereton J Decision: Declare that the plaintiff is entitled to an equitable right of carriageway. Order that the defendant transfer to the plaintiff, at the plaintiff's cost, an easement. Liberty to apply in the event of any difficulty arising in implementation. Order that the defendant be permanently restrained from interfering with or obstructing the use by the plaintiff and those authorised by her of the easement. Order that the defendant pay the plaintiff's costs. Catchwords: REAL PROPERTY – easements – whether plaintiff entitled to implied easement of access over Torrens title land – implied easement available as a personal right enforceable against transferor but not successors in title – no easement of necessity in the context of alternative means of access – no Wheeldon v Burrows easement in the absence of sufficient evidence of continuous and apparent quasi-easement – held, plaintiff's implied easement case fails.

EQUITY – estoppel – whether defendant estopped from denying the right of plaintiff to access her property via a track – where plaintiff purchased property with no practical means of access other than track – where plaintiff located her removable house by reference to endpoint of track – where plaintiff therefore detrimentally relied on assumption she could legally access her property via the track – where defendant used the track to show plaintiff the property for pre-purchase inspection, and indicated she should use track to install her house without relevant words of limitation – held, unconscionable for defendant to deny truth of assumption of access to property via track.