Eddy Gross v Graham Leslie Greer & Anor [2018] NSWSC 1572

Supreme Court New South Wales

Medium Neutral Citation: Eddy Gross v Graham Leslie Greer & Anor [2018] NSWSC 1572 Hearing dates: 2-3 October 2018 Date of orders: 17 October 2018 Decision date: 17 October 2018 Jurisdiction: Equity - Real Property List Before: Rein J Decision: See [28]-[29], [32]-[33], [39], [43] Catchwords: REAL PROPERTY – easements – right of carriageway – where land is subdivided but the deposited plans are not updated to reflect the benefit and burden of the right of carriageway in respect of the newly created lots – whether one of the newly created lots is entitled to the benefit of a right of carriageway – whether there is an easement pursuant to the requirements of s 88(1) of the Conveyancing Act 1919 (NSW) – whether extrinsic evidence is relevant to construing the instrument said to give rise to the easement – whether the transfer of a small portion of neighbouring land, which had the benefit of the easement, created an easement in favour of the transferee – whether there was an equitable easement – proprietary estoppel; HELD: easement did not comply with s 88(1) of the Conveyancing Act 1919 (NSW) – extrinsic material sought to be relied on in construing the relevant instrument inadmissible – transfer of neighbouring land did not result in an easement in favour of the transferee – basis for estoppel not established. Legislation Cited: Real Property Act 1900 (NSW) Conveyancing Act 1919 (NSW) Cases Cited: Buchholz v Kempsey Shire Council [2005] NSWSC 235 Chiu v Healey (2003) 11 BPR 21,241 Crabb v Arun District Council [1976] Ch 179 Dewhirst v Edwards [1983] 1 NSWLR 34 Gallagher v Rainbow & Ors (1994) 179 CLR 624 Goodwin v Papadolpulos (1985) NSW ConvR 55-256 McDonald v Peddle (1923) 42 NZLR 987 Papadopoulos v Goodwin [1982] 1 NSWLR 413 Parramore v Duggan (1995) 183 CLR 633 Re Maiorana and the Conveyancing Act [1970] 1 NSWR 627 Rixon v Horseshoe Pastoral Co Pty Ltd [2017] NSWSC 1293 Sidhu v Van Dyke (2014) 251 CLR 505 Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 Westfield Management Ltd v Perpetual Trustee Company Ltd (2007) 233 CLR 528 Willmott v Barber (1880) 15 Ch D 96 Texts Cited: Bradbrook & Neave's Easements and Restrictive Covenants (A. J Bradbrook & S. V MacCallum, Butterworths, 3rd ed, 2011, LexisNexis) Butt's Land Law (B Edgeworth, Thomson Reuters, 7th ed, 2017) Gale on Easements (Sweet & Maxwell, 20th ed, 2017) Category: Principal judgment Parties: Eddy Gross (Plaintiff) Graham Leslie Greer (First Defendant) Lisa Maree Greer (Second Defendant) Representation: Counsel: P. O'Loughlin (Plaintiff) C. Cassimatis (Defendants)