Starr v George [2019] NSWSC 60

Supreme Court New South Wales

Medium Neutral Citation: Starr v George [2019] NSWSC 60 Hearing dates: 7 February 2019 Date of orders: 07 February 2019 Decision date: 07 February 2019 Jurisdiction: Equity - Real Property List Before: Henry J Decision: See paras [12]-[13] Catchwords: EASEMENTS – where plaintiff seeks easement by express grant or prescription – declaration by consent Legislation Cited: Conveyancing Act 1919 (NSW) Real Property Act 1900 (NSW) Cases Cited: Bokhari v Bokhari [2014] NSWSC 1474 Fernance v Simpson (2003) 11 BPR 20,955; [2003] NSWSC 121 George Zoltan Ajkay v Hickey & Co Pty Limited [2011] NSWSC 822 HOOSH Inc (Haberfield out of school hours) v State of New South Wales [2017] NSWSC 379 Category: Principal judgment Parties: Robert John Starr (First Plaintiff) Valerie Mary Starr (Second Plaintiff) Robert Cyril George (First Defendant) Annette Louise George (Second Defendant) Department of Finance Services and Innovation trading as Office of the Registrar General (Third Defendant) Representation: Counsel: I Davidson SC w K Tang (Plaintiffs)

Solicitors: Bestic Law (Plaintiffs) McDonald Johnson Lawyers (First and Second Defendants) Office of the Registrar General (Third Defendant) File Number(s): 2018/00315410

Ex tempore jUDGMENT (revised) 1. HER HONOUR: In these proceedings, the plaintiffs, Robert John Starr and Valerie Mary Starr (Plaintiffs), seek declaratory relief concerning a right of way for the benefit of their property, being Lot 212 of Deposited Plan 844257, known as Lot 212, Mitchells Flat Road, Mitchells Flat (Starr Property). 2. The first and second defendants, Robert Cyril George and Annette Louise George (George Defendants) are the registered proprietors of the land on which the Plaintiffs seek the right of way, being Lot 1 of Deposited Plan 783204 known as 374 Mitchells Flat Road, Mitchells Flat (George Property). 3. The third defendant is the Office of the Registrar General who has filed a submitting appearance in the proceedings. 4. The Plaintiffs claim that the right of way exists and has arisen by way of an express grant or, in the alternative, a prescriptive easement by long user over the George Property as sole access to the Starr Property. The Plaintiffs also seek consequential orders directing the third defendant to take the necessary procedural steps to register the right of way as an easement. 5. Prior to today's hearing, the representatives for the Plaintiffs and George Defendants informed me that they had reached a resolution in the proceedings. They proposed consent orders, which included a declaration that the right of way, being the area described as "proposed right of carriageway 10 wide" shown in the Plan of Survey annexed to the proposed consent orders is a right of carriageway 10 metres wide burdening the George Property and benefiting the Starr Property. 6. It is not the practice of this Court to make declarations by consent without a hearing on the merits or in the absence of any facts which support the grant of a declaration: George Zoltan Ajkay v Hickey & Co Pty Limited [2011] NSWSC 822 at [7]; Bokhari v Bokhari [2014] NSWSC 1474 at [7]; HOOSH Inc (Haberfield out of school hours) v State of New South Wales [2017] NSWSC 379 at [7]. 7. I am however prepared to do so in this case having regard to the evidence which the parties put before me and rely on in support of the declaration. Relevantly, that evidence establishes two important matters. 8. First, it shows that historical conveyances of the George Property from 1910 through to 1988, prior to the George Property being converted to Torrens Title, have been subject to an "Existing Right of Way by User", the location of which Existing Right of Way by User is consistent with the right of way now being sought by the plaintiffs: see Affidavit of Robert John Starr sworn 26 November 2018 at paragraphs [23]-[28]; Exhibit RJS-1 at pages 12-14 and 18-19; Affidavit of Anthony Douglas Mexon sworn 28 November 2018 at paragraphs [22]-[26]; Report of Thomas Campbell dated 15 January 2019 at page 2. 9. Secondly, it shows that the right of way to the Starr Property passing through the George Property has been in continuous use, including by the Plaintiffs, for many years since about 1912 through to the present day, which use has been enjoyed without seeking permission or complaint from the owners of the George Property: see the Statutory Declaration of Ada Ellen May Prior dated 15 August 1983; Affidavit of Robert John Starr sworn 26 November 2018 at paragraphs [34]-[42]; Affidavit of Valerie Mary Starr sworn 22 November 2018 at paragraphs [4]-[10]; Affidavit of Peter Bernard Ernst sworn 22 January 2019 at paragraphs [4]-[10]; Affidavit of Patricia Mary Ernst sworn 22 January 2019 at paragraphs [4]-[9]. 10. In my view, this evidence supports the Court inferring there had been an express grant of an easement prior to the conversion of the George Property to Torrens Title in 1988, which may entitle the plaintiffs to rely on s 42(1)(a1) Real Property Act 1900 (NSW). Alternatively, it is evidence that supports a finding of an easement by prescription, in accordance with the principles set out in Fernance v Simpson (2003) 11 BPR 20,955; [2003] NSWSC 121. 11. I also note that this is not an application for the grant of an easement under s 88K Conveyancing Act 1919 (NSW), which would have required me to be satisfied of a range of other matters before making an order imposing an easement over the George Property. 12. In those circumstances, I am satisfied that it is appropriate to make the declaration by consent as sought. 13. For these reasons, by consent, I make the following declaration and orders: 1. Declare that the area described as "proposed right of carriageway 10 wide" shown in the Plan of Survey annexed to these orders and marked "A" (Plan) is a right of carriageway 10 metres wide burdening Lot 1 in DP 783204 and benefiting Lot 212 in DP 844257 (Easement). 2. Order that the Registrar General, upon lodgement of the Plan in registrable form, is to register the Plan as a deposited plan pursuant to Part 23, Division 3 of the Conveyancing Act 1919 (NSW) (Easement DP). 3. Order that the Registrar General, upon registration of the Easement DP and submission by the plaintiffs of a Request form attaching a sealed copy of the Court's orders, is to make a recording in the folio for each of Lot 1 in DP 783204 and Lot 212 in DP 844257 noting on title the interest comprised by the Easement. 4. All existing costs orders be vacated. 5. The Court makes no order as to costs, with the intention that each party bears its own costs. 6. The Court notes the agreement of the plaintiffs to pay the amount of $12,000 to the first and second defendants. 7. The Statement of Claim and Statement of Cross-Claim otherwise be dismissed. 8. Vacate the hearing of the matter on 8 February 2019 and 12 February 2019. 9. Direct that the exhibits be returned to the parties. 10. Liberty to apply on two days' notice.