Beazley P, Gleeson JA, White JA, Slattery J, Morgan Gale J
Source
Original judgment source is linked above.
Judgment (5 paragraphs)
[1]
Background to the Deed
Mr Campbell submitted that it is erroneous to look for the intention or contemplation of the parties outside of what was manifested by the terms of the instrument in Schedule B to the Deed. He submitted that because the parties intended to register the Transfer Granting Easement, the only matters to which regard could be had in construing the terms of the instrument are those to which regard could be had if the instrument were registered. This did not include extrinsic material which might establish facts or circumstances existing at the time of the creation of the registered dealing, including the objective background to the entry into the Deed (Westfield Management Limited v Perpetual Trustee Company Ltd (2007) 233 CLR 528; [2007] HCA 45 at 531 [5]; 539 [39]) ("Westfield Management").
I do not agree. The principles in Westfield Management are confined to the construction of easements that have been registered. The form of Transfer Granting Easement in Schedule B to the Deed has not been registered. The Deed contained the covenant for further assurance quoted at [5]. To determine objectively the parties' intention as to the nature of the rights agreed to be granted over Mr Campbell's land, the Deed, including Schedule B, is to be construed having regard to the objective facts known to both parties which provide the context in which it was entered into and its object or commercial purpose.
Mr Campbell owns a property in Ellesmere Road, Gymea Bay, being Folio Identifier 4/14551 and referred to in the proceedings as Lot 4. At the time of the Deed the Hamiltons owned another property in Ellesmere Road, Gymea Bay, being the land in Folio Identifier 1153/601960 and referred to in the proceedings as Lot 1153. The Hamiltons had obtained approval for the subdivision of Lot 1153. A plan of subdivision of Lot 1153 for the creation of two new lots (1150 and 1151) had been approved by the council on 19 February 2015, but had not been registered.
Both properties lie to the east of Ellesmere Road, Gymea Bay. That land slopes steeply to the bay. Lot 1153 extended to Gymea Bay.
Mr Campbell's property was subject to a number of easements in favour of neighbours who owned properties below and further to the east of his property that have frontages to Gymea Bay (Judgment [14]). The easements allow the neighbours to travel in a generally northerly direction on a common driveway up to Ellesmere Road (Judgment [14]).
Lot 1153 was a large parcel of land, being approximately 4,550m² in area, sloping very steeply to the waterfront. The proposed Lot 1151 is located at the top of the block. There is a house on that part of the property and there is access from the house to Ellesmere Road by right of carriageway on the north-western side of the lot. Mr Campbell's land adjoined Lot 1153 to the north-east.
Registration of the plan of subdivision of Lot 1153 was dependent on the Hamiltons' obtaining a right of way for access to Ellesmere Road. It was not topographically feasible to provide such access via the right of carriageway to the north-west of Lot 1153 on the right of carriageway that gives access to the house at the top of the block.
In December 2014 the Hamiltons commenced proceedings against Mr Campbell seeking the creation of an easement over Lot 4 pursuant to s 88K of the Conveyancing Act for vehicular and pedestrian access for the benefit of the as-then unsubdivided Lot 1153. Following a mediation of those proceedings, on 17 November 2015 the parties entered into an agreement called a "Heads of Agreement". It provided:
"Heads of Agreement
1. This Agreement is immediately binding but it is the intention of the parties to enter into a Deed of Settlement incorporating these terms as soon as practicable.
2. Upon execution of a Deed of Settlement, the Defendant grants to the Plaintiff an easement for services and carriageway of 3m width from the Eastern Boundary of Lot 4 DP 14551 (Lot 4), known as 188 EIlesmere Road, Gymea Bay (the Right of Way) but such grant is not to be registered by the Plaintiff for 12 months from the date of the execution of the Deed of Settlement or such lesser time as the Defendant agrees.
3. The parties agree to terms being filed on 11 December 2015 in proceedings no. 2014/361075 to the following effect:
a. Proceedings dismissed; and
b. No order as to costs.
4. The Plaintiff is to pay the Defendant an overall amount of $275,000 for compensation for the grant of the Right of Way and for the Defendant's costs of the proceedings in the following manner:
a. The Plaintiff will pay the Defendant $150,000 within 2 months from the date of the execution of the Deed of Settlement; and
b. The Plaintiff will pay the Defendant $125,000 on production of the title deeds 12 months from the date of the execution of the Deed of Settlement.
5. The Plaintiff agrees that a development application for the subdivision of 198 Ellesmere Road Gymea Bay, described as Lot 1153 in DP 601960 (Lot 1153), or part thereof shall not be lodged within 12 months from the date of the execution of a Deed of Settlement or such lesser time as the Defendant agrees.
6. The Plaintiff agrees not to object to the Defendant's development application for the subdivision of Lot 4.
7. The Defendant agrees not to object to the Plaintiff's development application for a subdivision of Lot 1153 or part thereof.
8. The Defendant grants the Plaintiff a licence for vehicular access over the Right of Way for a period of 12 months from the date of execution of the Deed of Settlement.
..."
The parties intended that a Deed of Settlement should incorporate the terms of the Heads of Agreement (clause 1). Mr Campbell agreed that upon execution of the Deed of Settlement he would grant the Hamiltons "an easement" for services and carriageway. At general law, a characteristic feature of an easement is that:
"... it is a proprietary, not a personal, right and will therefore bind successors to the servient land and enure for the benefit of successors to the dominant land." (Jonathan Gaunt QC & The Honourable Mr Justice Morgan Gale on Easements (19th ed, 2012, London: Sweet & Maxwell) at [1-01])
In Regency Villas Title Ltd v Diamond Resorts (Europe) Ltd [2018] UKSC 57 Lord Briggs, with whom Lady Hale, Lord Kerr and Lord Sumption agreed, described an easement (at [2]) as follows:
"The essence of an easement is that it is a species of property right, appurtenant to land which confers rights over neighbouring land. The two parcels of land are traditionally, and helpfully, called the dominant tenement and the servient tenement. The effect of the rights being proprietary in nature is that they 'run with the land' both for the benefit of the successive owners of the dominant tenement, and by way of burden upon the successive owners of the servient tenement. By contrast merely personal rights do not generally have those characteristics."
In Brendan Edgeworth, Butt's Land Law (7th ed, 2017, Thomson Reuters (Professional) Australia) at [9.90], it is said:
"A mere personal right binds only the parties to its creation. However, an easement binds not only the parties to its creation but also their successors in title: it 'runs with the land'."
The effect of s 88 of the Conveyancing Act is that if the instrument seeking to create an easement does not comply with the requirements of s 88(1), then the easement will not be enforceable against a person interested in the land that is not a party to its creation. That provision imposes a qualification on the circumstances in which an easement will bind successors in title to a party to the creation of an easement, but it does not alter the ordinary meaning of an "easement".
Mr Campbell cited the definition of "easement" in Adrian Bradbrook and Susan MacCallum, Bradbrook and Neave's Easements and Restrictive Covenants (3rd ed, 2011, LexisNexis Butterworths) at [1.2]:
"An easement may be defined to be a privilege without profit, which the owner of one neighbouring tenement hath of another, existing in respect of their several tenements, by which the servient owner is obliged 'to suffer of not to do' something on his own land, for the advantage of the dominant owner."
He submitted that this showed that it was not an essential characteristic of an easement that it bind successors in title.
The problem with this definition is that it does not distinguish between an easement and a contractual licence. In the Heads of Agreement the parties used the term "easement" in contra-distinction to a mere contractual licence.
The parties' intention as expressed in the Heads of Agreement was that Mr Campbell would grant an easement for services and carriageway that would run with the land. The agreement was made in the context of the Hamiltons' seeking registration of the plan of subdivision of Lot 1153.
The Heads of Agreement did not itself identify what would be the dominant and servient tenements of the easement to be created. That was to be left to be determined by the Deed of Settlement. But the parties did clearly intend that the easement to be granted would benefit the Hamiltons' successors in title and would bind Mr Campbell's successors in title. It could not be expected that the plan of subdivision would be registered, or if it were, someone would purchase a subdivided lot, if access to Ellesmere Road were dependent upon a right of carriageway and an easement for services across Lot 4, and those rights would lapse upon Mr Campbell's selling Lot 4.
[2]
The Transfer Granting Easement in Schedule B to the Deed
Clause 2.6 of the Deed, whereby Mr Campbell (RC) agreed to give Mr and Mrs Hamilton (CH and PH) a signed Transfer Granting Easement is quoted above at [4].
The expression "Easement (Transfer Granting Easement)" was defined in clause 1.2. The definition was:
"Easement (Transfer Granting Easement) means the document as set out at Schedule B of this Deed and capable of registration (at the expense of CH and PH ) at the Land & Property Information Office, granting CH and PH an
easement for services and carriageway three (3) metres in width from the
eastern boundary of Lot 4."
Schedule B contained a prescribed form of Transfer Granting Easement. It identified the Servient Tenement as being part of 4/14551 and the Dominant Tenement as part of 1153/601960. The description of the easement was:
"EASEMENT FOR SERVICES AND CARRIAGEWAY 3 WIDE AS SHOWN IN PLAN ANNEXED HERETO AND MARKED 'A' AND AS DESCRIBED IN DOCUMENT ANNEXED HERETO AND MARKED 'B'"
Annexure A to the Transfer Granting Easement was a plan of the easement over Lot 4. There is no issue about the identification of the land burdened by the easement.
Annexure B set out the terms of the easement. It relevantly provided:
"Annexure B
Easement for services and carriageway
Lot benefited
1. This easement only benefits the lower part of Lot 1153 in Deposited Plan 601960 (Lot 1153), being that part of Lot 1153 that is approximately 3,649 square metres and, subject to minor boundary adjustments, shown as Lot 1150 on the annexed plan marked 'C'.
2. This easement does not benefit the upper part of Lot 1153, being that part of Lot 1153 that is approximatelv 1,000 square metres and, subject to minor boundary adjustments, shown as Lot 1151 on the annexed plan marked 'C'.
3. This easement does not benefit or will no longer continue to benefit:
a. the area identified as 'PARCEL OF LAND TO BE TRANSFERRED' that is approximatelv 149.9 square metres and identified on the annexed plan marked 'D' if some or all of
that area is transferred to the registered proprietor of Lot 1152 in Deposited Plan 601960 (Lot 1152) (or the registered proprietor of any subdivision of Lot 1152); and/or
b. any part of lot 1153 that is smaller in area than the minimum lot size for subdivision of lot 1153 and is transferred to the registered proprietor of an adjacent or adjoining lot.
Services
4. The owner of the lot benefited may:
(a) use the lot burdened, but only within the site of this easement, to provide domestic services to or from the lot benefited, and
(b) do anything within the site of this easement that is reasonably necessary for that purpose, including:
• entering the lot burdened, and
• taking anything on to the lot burdened, and
• carrying out work, such as constructing, placing, repairing or maintaining pipes, poles, wires, cables, conduits, structures and equipment.
...
Carriageway
8. The owner of the lot benefited, and every person authorised by them:
(a) may use the site of this easement, to go, pass and repass at all times and for all purposes with or without animals or vehicles to and from the lot benefited, or any part thereof, but only for the purposes of the lot benefited, or any part thereof;
(b) may not use the site of this easement to park, load or unload vehicles.
9. The owner of the lot benefited and any person authorized by them to use the site of this easement shall not unreasonably cause damage to the easement and shall compensate the owner of the lot burdened for the cost of any damage resulting from their use of the easement.
10. The owner of the lot benefited will from time to time pay the owner of the lot burdened a proportion of the reasonable costs incurred by the owner of the lot burdened for the rnaintenance and repair of the site of the easement, having regard to the site of the easement at the time of the grant and such proportion to be in equal proportion with the other users of the site of the easement.
11. The owner of the lot burdened may interfere with or obstruct the site of the easement to carry out improvements, maintenance or repairs to the site of the easement but only as is reasonably necessary.
12. The owner of the lot burdened may interfere with or obstruct the site of the easement to carry out improvements, maintenance or repairs to the lot burdened, or development of the Lot burdened, but only as is reasonably necessary.
..."
The instrument refers at paragraphs 10-12 to "the owner of the lot burdened". If it were intended that the burden of the rights granted should not run with the land, that language would be inapt. Nor would it be apt to describe Lot 4 as the servient tenement in Schedule B. Thus the terms of Transfer Granting Easement confirm that objectively considered the parties intended to create easements that would run with the land: both the dominant and servient tenements.
Annexure 'C', which is referred to in paragraphs 1 and 2 of Annexure 'B', is a copy of the approved plan of subdivision of Lot 1153. The plan of subdivision had been approved by the Sutherland Shire Council on 19 February 2015. It was subsequently registered on 13 March 2017. It is reproduced in the reasons of the primary judge at [42] of the judgment and is reproduced below:
Lot 1150 was shown on the plan to have "by deduction" an area of 3,557m², whereas clause 1 of Annexure B referred to the part of Lot 1153 that the easement benefited as having an area of approximately 3,649m² and was subject to minor boundary adjustments.
The deduction apparently was that according to DP601960, Lot 1153 had an area of 4,557m². Lot 1151 in the proposed subdivision of Lot 1153 (which did not have the benefit of the easement) was said to have an area of 1,000m² and hence the area of Lot 1150 was said by deduction to be 3,557m². Neither the area of Lot 1153 in DP601960, nor the areas of proposed Lots 1150 and 1151 in the proposed plan of subdivision were based on certified plans of survey. The survey certification on DP601960 was crossed out. The approved plan of subdivision of Lot 1153 was certified as being only a partial survey.
[3]
Registration of Transfer Granting Easement
Mr Jordan asked his search agent, SAI Global, to attend at the LPI and seek advice whether the Transfer Granting Easement in the form of Schedule B to the deed was in registrable form. He received from his search agent an endorsement on the copy of the document stating that the document was in a form acceptable for lodgment followed by what appeared to be an initial. After much wrangling, Mr Campbell's certificate of title to Lot 4 was produced to enable registration of the Transfer Granting Easement in the form of the Schedule to the Deed. On 16 February 2017 the Hamiltons paid the sum of $275,000.
On 24 February 2017 the LPI raised a number of requisitions. They included the following:
"1. The easement description at marginal note (E) must be consistent
with the description at the designation (A) on the plan and in the
heading of the plan.
2. The western boundary of the easement site must be shown as a
broken line on the plan.
3. The north point must be shown on the plan.
4. The plan of survey annexed to the dealing (Annexure 'C') is unacceptable. A plan of survey must be lodged as a Deposited Plan. The dealing must then be amended to refer to the new plan."
Discussions ensued between Mr Jordan and Mr Hamilton and staff of the LPI. The result of those discussions was that Mr Jordan arranged for a surveyor to prepare a plan of survey. The plan of survey did not include a calculation of the area of the part of Lot 1153 to be benefited by the easement. The survey plan identified as "(X)" the part of Lot 1153 that was to have the benefit of the easement. The orientation of the boundaries and the length of the boundaries is identical to the plan that was Annexure C to the instrument in Schedule B to the deed.
Mr Hamilton's evidence was that he met with staff of the LPI who said what changes needed to be made to the form of the Transfer Granting Easement in order for it to be registered. He initialled the changes that were made by staff of the LPI. The relevant change to Annexure B to the Transfer Granting Easement was that after the words "Deposited Plan 601960 (Lot 1153)" there was inserted the words "being part designated (X) on plan attached" and there was attached the plan prepared by the surveyor. The plan Annexure "C" was retained. The survey plan annexed is reproduced below:
A second change was that clause 2 of Annexure B was deleted. As a staff member of the LPI told Mr Hamilton, that clause was already covered by clause 1 and was not necessary. It is not necessary for an easement to identify the land not benefited.
Mr Hamilton initialled a statement that he was authorised to amend the dealing. The Deed of Settlement and Release did not authorise Mr Hamilton to amend the form of the dealing. The primary judge found that both Mr Hamilton and Mr Jordan were highly credible witnesses whose evidence he accepted. His Honour found that there was no basis to attribute any bad faith or unconscionable conduct to either of them. His Honour found that Mr Hamilton thought that the Deed of Settlement and Release entitled him to do what he did at the LPI (Judgment [133]). That finding is not challenged.
The primary judge held that Mr Hamilton was so entitled (Judgment [133]) I do not agree, but that is of no moment, because the Hamiltons, although not authorised themselves to amend the form of the instrument, would have been entitled to an order requiring execution for registration of an instrument that granted an easement over the lower part of Lot 1153 designated (X) on the survey plan attached to the instrument.
It should be noted that the form of the Transfer Granting Easement that was registered contains the same reference to the area of the part of Lot 1153 that is benefited by the easement and the same reference to minor boundary adjustments to Lot 1150 as was contained in the form of instrument that was Schedule B to the deed. The easement that was registered includes the same Annexure "C" as was an Annexure to the instrument in Schedule B to the deed.
Mr Campbell did not identify any difference between the area identified on the survey plan attached to the instrument as registered as the area to which the benefit of the easement is appurtenant and the plan that is Annexure C to the instrument that was Schedule B to the deed.
In Papadopoulos v Goodwin [1982] 1 NSWLR 413 Wootten J said of s 88(1) (at 417):
"The words 'clearly indicate' suggest an intention to impose a higher standard than that the dominant tenement is capable of being ascertained by ordinary processes of construction, which processes include the use of extrinsic evidence to identify the dominant tenement when its identity does not clearly appear from the instrument. ...
The word 'indicate' on its own would not necessarily impose a very stringent standard. The relevant meaning given by the Shorter Oxford Dictionary is 'to point out, point to, make known, show (more or less distinctly)'.
The addition of the word 'clearly' however greatly reduces the range ofmeaning. The Shorter Oxford Dictionary gives as meanings of 'clear': 'distinct, free from confusion' and 'evident, plain'. Wests, Words and Phrases, vol 7, p 635 et seq shows that the word 'clearly' has been frequently used in United States legislation in a variety of contexts, including 'clearly appear', 'clearly ascertainable', 'clearly establish' and 'clearly expressed'. Again and again the courts have gone back to Webster's definition, viz: 'in a clear manner; without entanglement or confusion; without uncertainty.'"
On appeal (Goodwin v Papadopoulos (1985) NSW ConvR 55-256) Mahoney JA agreed "in general" that this was the effect of the phrase (at 55-256). Priestley JA (with whom Samuels JA agreed) said that:
"... persons with an interest in land who are said to be affected by agreements relating to the use of the land to which they were not a party, must be able to see written down in a document a clear indication of the matters enumerated in s 88(1) affecting their land."
I agree with the primary judge, substantially for the reasons his Honour gave, that the instrument that was Schedule B to the deed did clearly indicate the land to which the benefit of the easement was appurtenant. That land was clearly identified as the lower part of Lot 1153 that was shown as Lot 1150 in the plan of proposed subdivision that was Annexure C to the instrument.
Clause 2 of Annexure B in Schedule B to the Deed also refers to minor boundary adjustments to Lot 1151. That suggests that the boundary adjustments contemplated may not have been confined to adjustments by natural causes to the boundary to Lot 1150 that was the mean high watermark. The primary judge said that the land identified was subject to minor boundary adjustments to clarify that if there were any such adjustments prior to registration of the plan of subdivision it would be Lot 1150 in the plan as registered that would be entitled to the benefit of the easement (Judgment [103]).
Mr Campbell submitted that as the plan of subdivision had been approved before the time of the deed, the "minor boundary adjustments" could have nothing to do with that subdivision. I do not agree. We were not referred to any evidence of practice or statutory provision that would preclude the council from issuing a subdivision certificate (Environmental Planning and Assessment Act 1979 (NSW), then s 109C(1)(d) and s 109J) to enable registration of the plan (Conveyancing Act, s 195C(1)(e)) if there were an approved minor boundary adjustment. In that event the land benefited would still be clearly identified as Lot 1150 in the new subdivision.
The reference to the area shown as Lot 1150 on the annexed plan as having an area of approximately 3,649m² does not detract from what is otherwise a clear statement that the land to have the benefit of the easement is Lot 1150. The plan of subdivision refers to the area of Lot 1150 as being 3,557m² by deduction. The primary judge held that the reference in clause 1 to 3,649m² could be disregarded as a typographical or transcription error (Judgment [107]). His Honour applied the principle of construction of deeds that "a false description does not vitiate, when there is no doubt [what] is meant" (citing Eastwood v Ashton [1915] AC 900 at 914, Morrell v Fisher (1849) 154 ER 1350; (1849) 4 Ex. 591). Mr Campbell argued that it was not possible to say that the figure of 3,649m² was a mistake or that the figure of 3,557m² was accurate because Annexure C was only a partial survey and there was no evidence of an accurate survey to establish the area of 4,557m² for Lot 1153. The plan of subdivision showing the creation of Lot 1153 bears a notation from a surveyor dated 9 November 1978 which crossed out the certificate that the survey represented in the plan was accurate and had been made either by the surveyor himself or under his immediate supervision. The form required the striking out of either statement 1 "by me" or statement 2 "under my immediate supervision in accordance with the Survey Practice Regulations", but the whole certificate was crossed out, although it was dated.
This submission mistakes the primary judge's finding of a transcription error. His Honour was satisfied that the author of clause 1 intended to take the statement of area from the plan which was Annexure C but mistranscribed the area of Lot 1150 as shown on that plan. It is unnecessary to decide whether this finding was correct. It does not matter. The statement that the area was "approximately 3,649m²" was neither essential, nor material to the identification of the land benefited. That land was identified by the depiction of Lot 1150 in the annexed plan. Mr Campbell must recognise this by his acceptance that the transfer as registered clearly identifies the land benefited. That concession is correct.
For these reasons the premise of Mr Campbell's argument fails. The form of easement in Schedule B to the deed did not fail to indicate clearly the land to which the benefit of the easement is appurtenant.
But if it had failed to do so, Mr Campbell would still not have been entitled to the relief he sought. When the deed as a whole is construed having regard to the objective matrix of facts in which it was entered into, notably the Heads of Agreement, it is clear that the parties' intentions, as objectively indicated, was that the easement to be created should enure both for the benefit of the Hamiltons and their successors in title to Lot 1150 once created, and should bind both Mr Campbell and his successors in title. Clause 19.1 of the Deed provides that the Deed is the entire agreement of the parties and supersedes any prior understandings, negotiations or agreements. This does not mean that Heads of Agreement is not an objective fact that forms part of the surrounding circumstances which provide the context and identify the purpose of the Deed.
If the easement provided for by Schedule B were not effective to bind Mr Campbell's successors in title, then he would be required by clause 14.1 of the Deed to sign and deliver all documents reasonably required of him by notice from the Hamiltons to carry out and give full effect to it.
[4]
Conclusion
The primary judge made declarations and orders that include the following:
"(1) Declare that the Deed of Settlement and Release made between the plaintiff and the defendants and dated 14 November 2016 ('the 2016 Deed'), on its true construction, transfers the rights as set out in the Transfer Granting Easement registered number AM160015.
(2) Declare that on its true construction the 2016 Deed binds successors in title.
(3) Declare that Transfer Granting Easement registered number AM160015 is valid and enforceable.
(4) Order that the Summons and Statement of Claim be dismissed.
(5) Order that the Cross Summons be otherwise dismissed."
It is not correct to say that the Deed binds successors in title (declaration (2)) as distinct from the registered instrument's doing so. Declaration (2) should be set aside. Otherwise the appeal should be dismissed with costs. Declaration (3) covers the position.
For these reasons I propose the following orders:
1. Appeal allowed in part.
2. Set aside declaration (2) made on 4 June 2018.
3. Otherwise appeal dismissed.
4. Appellant pay the respondent's costs of the appeal.
[5]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 25 February 2019
Parties
Applicant/Plaintiff:
Campbell
Respondent/Defendant:
Hamilton
Legislation Cited (3)
(Environmental Planning and Assessment Act 1979(NSW)
Solicitors:
Hones Lawyers (Appellant)
Eliot Tuthill (Respondents)
File Number(s): 2018/200753
Decision under appeal Court or tribunal: Supreme Court of New South Wales
Jurisdiction: Equity Division
Citation: [2018] NSWSC 806
Date of Decision: 4 June 2018
Before: Slattery J
File Number(s): 2017/156313
[This headnote is not to be read as part of the decision]
The appellant by way of a Deed of Settlement and Release ("the Deed"), agreed to grant an easement to the respondents. He signed a form of Transfer Granting Easement ("the First Transfer"). Following requisitions from Land and Property Information New South Wales this was not registered. Handwritten alterations were made without the appellant's consent and it (now "the Registered Transfer") was registered. The appellant sought an order for removal of that instrument from the register.
At first instance, the appellant argued that the First Transfer (but not the Registered Transfer) did not "clearly indicate" the benefitted land in noncompliance with s 88 of the Conveyancing Act 1919 (NSW), rendering it unenforceable against his successors in title.
It was common ground that if the First Transfer did comply with s 88(1) or, if it did not, if the respondents would be entitled to an order for specific performance of a covenant for further assurance to require the appellant to execute a registrable form of transfer creating easement that did bind his successors in title, no order should be made for removal of the Registered Transfer.
The primary judge held that the First Transfer signed by Mr Campbell did comply with s 88(1), the Deed, on its true construction, provided for the grant of rights that would bind the appellant's successors in title, and that the Registered Transfer was valid and enforceable.
The issues on appeal were whether the appellant agreed to grant an easement that would bind his successors in title and whether the First Transfer that he signed did comply with s 88(1).
The Court, allowing the appeal in part to set aside a declaration that the Deed itself bound the appellant's successors in title, but otherwise dismissing the appeal, held (per White JA, Beazley P and Gleeson JA agreeing):
(i) The First Transfer did "clearly indicate" the benefitted land (at [50]-[54]);
Papadopoulos v Goodwin [1982] 1 NSWLR 413, referred to.
Goodwin v Papadopoulos (1985) NSW ConvR 55-256, referred to.
(ii) Extrinsic evidence going to the objective intentions of the parties may be used to construe the Deed (at [14]);
Westfield Management Limited v Perpetual Trustee Company Ltd (2007) 233 CLR 528; [2007] HCA 45, distinguished.
(iii) The Deed, on its true construction, provided for the grant of an easement which would bind the appellant's successors in title (at [56]);
Regency Villas Title Ltd v Diamond Resorts (Europe) Ltd [2018] UKSC, referred to.
(iv) Even if the First Transfer had failed to "indicate clearly" the benefited land, the appellant would have been required by the covenant for further assurance to provide the respondents with a transfer that did, so as to bind his successors in title (at [59]).