(d) when originally tendered, the Exhibit had a couple of pages which were acknowledged not to be part of the Deed as executed.
15 I would certainly agree with Mr Parker's submissions in so far as they put that there must be great suspicion as to whether Schedules 3 and 4 were completed when the Deed was signed, sealed and delivered. However, it does not appear to me that a decision on this issue can affect the result of the case.
16 Classically, if a person wished to say that what was relied on by his opponent was not the deed as executed, a plea had to be put on of non est factum and that issue would be tried by the witnesses to the deed giving evidence as to what was contained in the document when they attested it.
17 It hardly ever happens in the 21st century, nor indeed in the late 20th century, that a deed is strictly proved, especially in equity litigation. Once a deed is tendered without objection or read as part of an affidavit without objection, and no witnesses to the deed are called, it is virtually impossible to rule on the question as to which pages were in the deed when it was signed, sealed and delivered.
18 Furthermore, it would not seem that an alteration to a deed by adding pages which everyone contemplated would be added, would be sufficient to void the deed if it is already executed and the additions are made only for the purpose of completing the expression of the intention of the parties to the deed already apparent on the face of it. The deed as completed would usually be held to be good; see Norton on Deeds, 2nd ed (Sweet & Maxwell, London, 1928) p 40. This proposition is supported by Adsetts v Hives (1863) 33 Beav 52; 55 ER 286 and more recently by the New South Wales Court of Appeal in Ryde Joinery Pty Ltd v Zisti (1997) 7 BPR 15,233 and see also Keysen v Gregg (1932) 32 SR (NSW) 288.
19 Thus, even if technical problems about how one keeps out of evidence a deed which has been altered were overcome, the additions in this case would not, to my mind, be material so that they would not have any effect on the enforceability of the main promises in the Deed.
20 There are two other answers to any problem in this area.
21 The first is that equity is particularly tender towards people who have done all that they promised to do under a contract or deed but are complaining that they have not received back what they expected; see eg Greene v West Cheshire Railway Co (1871) LR 13 Eq 44. The second is that, as Mr and Mrs Handley have given consideration for Mr Gunner's promise, it does not matter whether the document being sued on is a deed or not.
22 (2) It would seem quite clear that prior to December 2005, Mr and Mrs Handley requested Mr Gunner to sign the replacement transfer though the actual request does not appear to be in evidence. On 7 April 2006, the present solicitors for the plaintiffs did indeed make a formal demand.
23 The point that appears to be being made is that under clause 5.1 the Handleys may, by notice in writing, require Mr Gunner to do things once and once only and that because the initial attempts were irregular, it was too late for a formal notice to be given in April 2006.
24 I do not accept this submission. It seems to me that if the earlier notices were invalid, then there was no bar to giving the April 2006 notice, and likewise, if the earlier notices were valid, there was no need to give the April 2006 notice. Indeed, it seemed to me that this point was really just made by way of background rather than as a serious reason why the Handleys should not be given relief.
25 (3) Mr Parker puts that the Deed is in the form of an agreement before conveyance. He puts that the essential obligations are in clause 3 of the Deed, they are that Mr Gunner must do all things necessary to enable the plan of subdivision to be registered and create the easements and right of way set out in the draft s 88B instrument.
26 Assuming that the whole of the s 88B instrument is meant, then the easement fourthly referred to in the s 88B instrument is a right of way 11 metres wide and variable which burdens Lot 2 in DP 847605, ie Mr Gunner's land, in favour of Lot 2 in DP 703067 which is Mr and Mrs Handley's land.
27 I cannot, with respect, see how this argument can be correct. The registered easement was over the relevant part of Mr Gunner's land in favour of Mr and Mrs Handley's land. However, the disputed easement is over Mr and Mrs Brooks' land. Section 5 of the Deed, to my mind, was to lock Brooks in so that there would be no way that Brooks could get access to Malton Road unless he entered into an agreement with Mr Gunner and that Mr Gunner covenanted not to agree with Brooks contrary to the Deed.
28 I cannot see, with respect, how the registration of the s 88B instrument affected this scheme. However, Mr Parker points out that the s 88B instrument notes that the cost of maintenance, repair and restoration of the driveway and associated drainage works on the right of way was to be borne by Mr Gunner as to 48%, Mr and Mrs Handley as to 26% and there was 26% not accounted for. Mr Parker says that when one reads all of the documents, the other 26% was to be borne by Mr Brooks as appears from the annexure A to the Brooks Transfer.
29 I see that this is so, but I do not see how the argument is made out because this is so.
30 Mr Parker says that it would follow from his submission that the transaction has been completed by the s 88B instrument and that, in all the circumstances, the promises in the Deed have merged in the registration of the plan of subdivision and the grant of easements in the s 88B instrument; cf Pallos v Munro (1970) 72 SR (NSW) 507. However, because I do not accept Mr Parker's principal submission, it is not necessary to deal with this sub-submission in any detail except to say that I would have found it difficult to hold that the parties intended that there be a merger.
31 Mr Parker also draws attention to clause 8 of the Deed which says that notwithstanding anything else, Mr and Mrs Handley have no obligation to contribute to the cost of the maintenance, repair or restoration of the works unless and until the Brooks Transfer or any substitute transfer pursuant to clause 5 is registered at the Land Titles Office.
32 Again, I cannot see how this affects this particular question. Indeed, it would be further material to tell against there being a merger.
33 (4) This argument is that the obligation was to give an easement in favour of the Brooks' land. At the time the obligation was incurred the Brooks' land was owned by Mr and Mrs Brooks. Mrs Brooks has now died so that it is no longer possible to give the easement in favour of the land owned by Mr and Mrs Brooks.
34 The other point involved is that Brooks' land was identified in the original Deed as the land in Certificate of Title Volume 7075 Folio 202 being Lot 6 in Deposited Plan 25800. However, part of the Brooks' land has now been conveyed, it would seem, to Hornsby Shire Council and the Brooks' land is a smaller parcel of land, Lot 2 in DP 883724.
35 It is submitted that because of these two alterations to the Brooks' land, the obligation to grant the easement is spent.
36 I do not accept the first of these submissions. Where a person is a joint tenant with another, then that person has the whole ownership of the land. When his co-joint tenant dies, the interest of the surviving tenant is, in theory, not increased, even though the survivor is no longer subject to the possibility of his co-joint tenant severing the joint tenancy or making an application under s 66G of the Conveyancing Act 1919. See Megarry & Wade, Law of Real Property, 6th ed (Sweet & Maxwell, London, 2000) page 475, an identical passage in an earlier edition being adopted by Lord Browne-Wilkinson in the House of Lords in Hammersmith and Fulham London Borough Council v Monk [1992] 1 AC 478, 492. As Mr Brooks has the same interest as he had as at the date of the Deed, I cannot see how this point assists Mr Gunner.
37 The second point is in a different situation.
38 I should observe here that PX02 and the so-called "Brooks Transfer" as part of the Deed, does not include the Torrens Title reference to the dominant tenement, nor is the dealing accepted by the proposed transferee. However, there is in evidence, in a couple of places, another document in the same form as PX02 which notes the dominant tenement as Folio Identifier 6/25800, inserts a consideration of $1 and is again signed by Mr Gunner. Exactly where this came from is unclear.
39 It would at least seem that Mr Gunner has already executed one substitute transfer. Putting this aside, the obligation was to create a right of way over Gunner's land for the benefit of Brooks' land. The current proposed transfer is only in favour of part of Brooks' land as defined in the Deed. Is there an obligation on Mr Gunner to grant the easement on the basis that the part is a lesser obligation than the obligation to create the easement in favour of the whole?
40 The problem was considered by the High Court in Gallagher v Rainbow (1994) 179 CLR 624. By a 3-2 majority (the majority being Brennan, Dawson and Toohey JJ; the minority Gaudron and McHugh JJ) the High Court held that an easement is attached to the dominant land and will be enforced for the benefit of any part of the dominant land unless on its proper construction it is to benefit the dominant land only in its original form.
41 In Short v Patrial Holdings Pty Ltd (1994) 6 BPR 13,996, the Court of Appeal applied that method of construction and held that unless it appeared from the document that the intention of the parties was otherwise, an easement is for the benefit of each and every part of the dominant land. Authority is, accordingly, against Mr Parker's proposition.
42 (5) No time is stipulated in the document for a request for a duplicate transfer to be made. Time is not of the essence. Accordingly, one would need to construe the obligation as an obligation to comply if a notice to execute an identical document were made within a reasonable time. What is a reasonable time is a matter of fact in every case. Whilst 15 years may often be an unreasonable time, it is not necessarily so.
43 Mr Gunner says that there is no explanation for the delay since 1995 save that Mr and Mrs Handley have chosen to delay proceeding with the works. It was never ever contemplated that the obligation under the Deed would last forever.
44 In a letter written on Mr Gunner's behalf to the plaintiffs' solicitors of 3 July 2006, it was stated that:
"As he has previously stated … he does not object to Mr Brooks having a right of carriageway but the problem lies in determining where the road for the subdivision will be located under the new rules from Council because of the Bush Fire Act and a change in Council policy. It is unreasonable on behalf of Mr Handley to firstly file a summons in the Supreme Court after 14 years and secondly, more importantly, not determine the location of the future road for the subdivision."