Plaintiff v Defendant

(1) Has the defendant, or any of his predecessors in title, abandoned the easement of carriageway over the laneway?

(2) If so, what is the effect of that abandonment in respect of the registered interest of the defendant in the easement?

14 Section 73 of the Transfer of Land Act provides for the deletion from the Register of an easement which has been found to have been abandoned. The relevant provisions of s.73 are as follows:

"(1) A registered proprietor may make application in an appropriate approved form to the Registrar for the deletion from the Register of any easement in whole or in part where it has been abandoned or extinguished.

(2) The Registrar shall give to every person who appears from the Register to have any estate or interest in the land to which the easement is appurtenant notice of the application and if he is of opinion that any such easement has been abandoned or extinguished in whole or in part shall make appropriate amendments in the Register.

(3) Where it is proved to the satisfaction of the Registrar that any such easement has not been used or enjoyed for a period of not less than 30 years, such proof shall constitute sufficient evidence that such easement has been abandoned."

15 It is common ground that, on an application under s.73 of the Act, a servient proprietor may now rely on the common law doctrines of abandonment or extinguishment of easements[1]. The common law principles relating to the abandonment of easements are well established and relatively uncontroversial. At common law the abandonment of an easement depends on the intention of the owner of the dominant tenement[2]. Once an easement has been abandoned, it is abandoned forever[3]. Thus at common law abandonment is a question of intention of either the owner of the dominant tenement, or one or more of the predecessors of the owner of the dominant tenement.[4]

16 It is well established that mere non-user of the easement, even for a lengthy period of time, is not conclusive evidence of abandonment of a right of way, although it may be evidence of abandonment. In Woolfe v Freijahs' Holdings Pty Ltd[5] Tadgell J observed that " ... non-user, even for a very long time, will generally not provide by itself sufficient evidence of an intention to abandon". His Honour quoted the dictum of Viscount Dunedin in Keewatin Power Co Limited v Lake of the Woods Milling Co Limited[6]:

"When you are dealing with grant, a grantee may always, if he chooses, not exercise his rights under the grant to the full without in any way prejudicing his full right if he finds it convenient to use it."

17 The relevant intention of the owner of the dominant tenement is generally derived from all the facts and circumstances of the case by a process of inference. In order to establish abandonment, it must be proven that the owner of the dominant tenement, or his predecessors in title, intended forever to forego the rights provided by the easement, and not to assert them again. In Tehidy Minerals Limited v Norman[7], the Court of Appeal (consisting of Salmon, Sachs and Buckley LJJ) stated:

"Abandonment of an easement or of a profit á prendre can only, we think, be treated as having taken place where the person entitled to it has demonstrated a fixed intention never at any time thereafter to assert the right himself or to attempt to transmit it to anyone else."

18 The onus of establishing abandonment of an easement lies on the party asserting abandonment. Each case depends on its own facts. Nonetheless, a traverse of the reported authorities[8] amply justifies the remark of Brooking J in Shelmerdine v Ringen Pty Ltd[9] that the " ... cases ... show how hard it is to establish abandonment notwithstanding what might appear to a layman to be a strong case of abandonment".

19 The decision of the High Court in Treweeke v Thirty Six Wolseley Road Pty Ltd[10] is a clear illustration of that proposition. That case concerned a right of way which, because of the terrain, was at least in part impassable. For thirty years it had also been rendered impassable by an impenetrable bamboo plantation planted by the owner of the servient tenement. In 1956 the owner of that tenement installed a swimming pool across the right of way with the apparent acquiescence of the owner of the dominant tenement. Two years later she erected an iron fence across the way. In addition a chain wire fence, which was erected in the 1930s, and renewed in the 1960s at the cost of each owner, also crossed the right of way. At no time had the owners or occupiers of the dominant tenement used the entire right of way. Rather, they preferred to use a path through the property of another adjoining proprietor, albeit without possessing any legal rights over that path. In 1971 the owner of the servient tenement sought a declaration that the right of way had been abandoned. The plaintiff's claim failed at first instance before Hope J. On appeal to the High Court, McTiernan J and Mason J, in separate judgments, held that abandonment had not been established. Walsh J dissented. The majority placed emphasis on the availability to the owner of the dominant tenement of an alternative and easier route of access than that afforded by the right of way. Their Honours held that the preference by the owner of the dominant tenement to use that alternative route could not give rise to an inference of an intention to thereby forever abandon the rights to the right of way under the easement.[11] In contrast, Walsh J, who dissented, considered the cumulative effect of each of the impediments which had been placed over the easement over the course of a long period of time. In that context the blocking of the strip, near the waterfront, by the swimming pool, was regarded by his Honour as a "final step in a process of cumulative obstruction, in which at all times the respondent's predecessors acquiesced".[12]

20 Treweeke's case is relevant, in my view, because, notwithstanding the cogency of the points made by Walsh J in his dissenting judgment, nevertheless the majority of the Court were not satisfied that an inference of abandonment of the easement had been established. The decision of the Court in that case is a cogent illustration of the principle that a Court will not lightly infer abandonment by the owner of the dominant tenement.

21 Bearing in mind those principles, I turn to the question whether, under common law principles, the easement over the roadway had been abandoned by the defendant's predecessor in title, or alternatively has been abandoned by the defendant himself.

22 The evidence relied on by the plaintiff in support of an inference of abandonment was necessarily confined. Essentially, the plaintiff relied on the circumstance that, at least by the time Mr and Mrs Koraitsas purchased the plaintiff's property in 1963, the garage had already been constructed on the northern boundary of the defendant's property, thereby blocking access from that property to the laneway. At no time subsequently did the defendant's predecessors in title use, or seek to use, the laneway for the purpose of access between the defendant's property and Mark Street.

23 Mr Porter focussed significantly on the fact of the construction of the garage in its present location. He pointed out that the garage is a solid edifice built with the apparent intention that it be in place permanently, and not temporarily. Mr Porter further submitted that this case may be distinguished from cases such as Treweeke, in which the obstruction had been placed on, or to, the easement by the owner of the servient tenement. By contrast, in this case, the relevant obstruction was put in place by the owner of the dominant tenement. Mr Porter submitted that the person who constructed the garage did so with the intention to thereby block the access from the defendant's premises to and from the laneway. Thus he submitted the fact of the construction of the garage alone is sufficient to give rise to an inference of abandonment. Mr Porter submitted that the facts of this case can be further distinguished from those in Treweeke. In the latter case, the alternative access available to the owner of the dominant tenement was not based on any legal right, and thus was temporary and ephemeral. By contrast in this case the owners of the defendant's property have their own legitimate alternative means of access from the defendant's property to Mark Street, namely, from the garage which opens onto Mark Street.[13]

24 While the factors relied on by Mr Porter do have some cogency, nonetheless they are, in my view, insufficient to ground an inference that the defendant's predecessors in title had abandoned the easement. As Mr Sandbach, who appeared for the defendant, pointed out, in an important respect the facts in this case differ from the facts in other cases such as Treweeke, and do so in a way which runs counter to a factual conclusion that the defendant's predecessor in title constructed the garage with the intention of thereby forever abandoning his or her rights to the easement. In cases such as Treweeke, the owner of the servient tenement had acted with the apparent acquiescence of the owner of the dominant tenement. In such a case it would be difficult for the owner of the dominant tenement subsequently to alter his or her position and demand removal of the obstruction. By contrast, in this case, the obstruction - the north wall of the garage - was constructed by the then owner of the defendant's property. At all times that owner, and indeed his or her successors in title, had the power either to remove the obstruction, or, more realistically, to modify it by inserting a door or other opening in it. That proposition is by no means fanciful. The schematic drawings annexed to the defendant's application for the planning permit demonstrate that it is, and thus always was, feasible for a door to be inserted in the north wall of the garage. Thus at all times the owner of the dominant tenement had in his or her own hands the capacity to insert an opening in the north wall of the garage, and thereby to regain access to the laneway.

25 There are other factors in this case which also weigh against the implication of an intention by the defendant's successors in title to abandon the easement. First, since 1963, the defendant's property had been successively transferred to purchasers of it on four occasions. On each occasion the defendant's property was so transferred with the right of carriageway identified on the relevant certificate of title. On each occasion the relevant predecessor in title, by an instrument of transfer, purported to transfer the rights in the easement to the transferee. To that extent, the relevant predecessor in title so asserted his or her rights to the easement.[14] It is true, as Mr Porter has pointed out, that on each occasion on which such a transfer took place, the physical access from the defendant's property to the laneway was blocked by the north wall of the garage. Nonetheless, the fact remains that on the occasion of each transfer of the defendant's property, there was appurtenant to it a right, on title, to the easement over the laneway.

26 In addition, it is not strictly accurate to say that the existence of the wall has entirely blocked access from the defendant's property to the laneway. As the evidence tendered on behalf of the defendant demonstrates, from time to time the defendant, or workmen employed by him, have entered the laneway from Mark Street for the purposes of accessing the roof on the garage. To that limited extent the laneway has been used by the owner of the defendant's property for the purpose designated in the easement.

27 In light of the foregoing circumstances, the plaintiff has not satisfied me that, applying the principles to which I have already referred, I should draw an inference that the predecessors in title to the defendant's property had abandoned the easement.

28 The next question is whether the easement was abandoned by the defendant. In support of that proposition Mr Porter relied, in large measure, if not wholly, on the fact that the defendant has not, until recently, done anything to remove the obstruction to the easement constituted by the north wall of the garage. As I have already indicated I do not regard the fact of the construction of the north wall of the garage in that state, or its continued existence, as being a sufficient foundation for an inference that the defendant's predecessors in title had abandoned the easement. In particular, as I pointed out, the nature of the obstruction is not one which was incapable of being breached. As the defendant's schematic drawings indicate, at all times the defendant has had the physical capability to cut a doorway through the wall to the laneway. In that way, the continued existence of the wall could not, in my view, be considered to be evidence of an irrevocable decision by the defendant never to utilise the easement.

29 Furthermore, and more significantly, it is clear that the defendant has, over the years, entered from the laneway without considering it necessary to obtain the permission of the plaintiff, or Mr and Mrs Koraitsas, to do so. Some of the uses which the defendant has made of the laneway may not strictly conform with uses permitted by the easement, the form of which is contained in the 12th Schedule to the Transfer of Land Act. Nonetheless the conduct of the defendant is evidence of an understanding by him that he had a right to enter the laneway, which he exercised from time to time. In addition the defendant had expressly asserted the existence of the easement to Mr Alec Koraitsas. That conduct is inconsistent with an intention by the defendant to forever abandon his rights in respect of the easement over the laneway. In early 2005 the defendant asked Alec Koraitsas to move his vehicle which was on the laneway. Again that conduct is evidence of an understanding by the defendant that he then had a right in respect of the laneway which he was entitled to so assert.

30 The defendant gave evidence in order to supplement the statement of facts tendered on his behalf. In his evidence-in-chief he stated that, since he had purchased the property, he had never formed an intention to take any step which would deprive him of the right to rely on the right of way set out on the title. In Riley v Penttila,[15] Gillard J observed that while the Court should always be suspicious of any subjective evidence by a witness of his or her intentions, nonetheless that evidence does have some relevance to the question whether that person intended to abandon his or her rights to an easement. Mr O'Loghlen was cross-examined by Mr Porter. Mr O'Loghlen presented as an honest witness. I accept his evidence that he never formed an intention to take a step which would deprive him of his right to rely on the right of way. In his evidence he told me that from time to time over the years he had discussed, with his wife, plans for the renovation of his house and the garage which would include creating an access through the garage to the laneway. That topic had arisen because Mr O'Loghlen and his wife had used the garage to store their bicycles. It would be easier for them to remove the bicycles via a doorway cut into the north wall of the garage, such as that now designated in the schematic drawings which have been approved by the Victorian Civil and Administrative Tribunal. Mr Porter cross-examined Mr O'Loghlen as to why there had been such a lengthy delay in bringing to fruition the plans which had been under discussion between Mr O'Loghlen and his wife. I accept Mr O'Loghlen's evidence that while the matter had been the subject of discussion, and thus had been the subject of his then intention, ultimately the catalyst for action had been the need to renovate his house in order to provide more space for his family. Thus I accept Mr O'Loghlen's evidence that over the years he had formed and retained the intention to open a doorway or means of access from the garage onto the laneway.

31 As I have pointed out, an inference of abandonment is not lightly drawn. An easement is a valuable right over a property. In the present case the evidence is that the existence of the right of way on the title influenced the defendant's decision to purchase his property in 1987, and that the defendant regarded the right of way as an amenity which made his property more desirable. As the authorities state, in order that abandonment be established, the plaintiff must prove that the defendant intended forever to forego his rights over the laneway. In light of the factual circumstances which I have outlined above in my view no such inference can properly be drawn against the defendant. Indeed, I am satisfied that the facts establish the contrary conclusion, namely, that at all times the defendant intended to maintain his rights in respect of the easement. For those reasons I reject the contention made on behalf of the plaintiff that the defendant has abandoned the easement which is the subject of this litigation.

32 Accordingly, for the reasons which I have already set out, I am not satisfied that the plaintiff has established that the easement was abandoned either by the defendant's predecessors in title or by the defendant himself. The conclusion that none of the defendant's successors in title had abandoned the easement makes it unnecessary for me to decide one further issue which had been raised by counsel's submissions. That issue concerns the effect of the registration by the defendant as proprietor of his property, with the right to the easement as appurtenant thereto recorded on the relevant folio of the Register, if there had been any previous abandonment of the easement by a predecessor in title to the defendant. However, the issue was the subject of detailed submissions before me, and it is appropriate that I address it.

33 Mr Sandbach submitted that, if I were to conclude that there had been abandonment of the easement by a predecessor in title to the defendant, nonetheless the registration of the defendant on the title to his property, with the easement noted thereon, was conclusive evidence of the defendant's interest in the easement, which would have the effect of superseding any abandonment of the easement which had occurred hitherto. On the other hand Mr Porter submitted that on a proper analysis of the authorities, and of the Transfer of Land Act, the "indefeasibility" provisions contained in ss.41, 42, 43 and 72 of the Act, are subject to s.73 of the Act, which incorporates the common law doctrine of abandonment. In those circumstances he submitted that the structure of the Transfer of Land Act was to recognise that an act of abandonment of a predecessor in title had the effect that the easement was abandoned forever, notwithstanding the fact that it remained recorded on the relevant certificates of title.

34 The question raised by those submissions concerns the effect of the recording of the easement on the titles to the plaintiff's property and the defendant's property. The title to the plaintiff's property specifies that the part of the property designated by the laneway (coloured blue on the title plan) is subject to the easement created by the instrument of transfer which was executed in 1896. Equally, the title to the defendant's property describes the land contained in the certificate of title "together with a right of carriageway over the roads coloured brown" on the map on the title (one of those roads being the laneway). Those notations of the easement in respect of the laneway on the two titles were made under s.72(1) of the Transfer of Land Act which provides:

"A folio on the Register may contain a recording to the effect that the land therein described is subject or has appurtenant thereto an easement."

35 In support of his submissions Mr Sandbach relied on the decision of Tadgell J in Wolfe v Freijahs' Holdings Pty Ltd.[16] He also relied on the judgment of Gillard J in Riley v Penttila[17] and the decision of the Full Court of Victoria in Webster v Strong.[18] Mr Sandbach submitted that the effect of those decisions is that, on becoming registered proprietor of the defendant's land, the defendant thereby derived an indefeasible interest to his property, including the right of carriageway recorded on the certificate of title as being appurtenant thereto. Mr Sandbach submitted that such a conclusion is a necessary consequence of the Torrens system. He referred to the often quoted statement of Barwick CJ in Breskvar v Wall[19] to the effect that the Torrens system " ... is not a system of registration of title but a system of title by registration." Accordingly, any previous abandonment of the easement by a predecessor in title to the defendant is irrelevant. The defendant does not derive his title from the predecessor. Rather he derives his title to the defendant's property, including the rights over the easement, by virtue of being registered as proprietor of that property pursuant to the Transfer of Land Act. Thus, he submitted, under s.73, the Registrar could only act on any abandonment of the easement by the current registered proprietor.

36 On the other hand Mr Porter submitted that the decision of the High Court in Treweeke's case, and the decision of Needham J in Proprietors Strata Plan No. 9968 and anor v Proprietor Strata Plan No. 11,173 and ors[20] support the proposition that the Registrar, under s.73, may act on an abandonment by a predecessor in title as the basis upon which to delete an easement pursuant to s.73(1) of the Act. Mr Porter submitted that in Wolfe's case Tadgell J erred in distinguishing s.73 of the Transfer of Land Act from the provisions of the relevant legislation in New South Wales, namely s.89 of the Conveyancing Act 1919 (NSW). Thus Mr Porter submitted that the abandonment referred to in s.73 of the Transfer of Land Act included abandonment by a predecessor in title.

37 In Webster v Strong the Full Court held that the fact that the plaintiff's certificate of title stated that he was entitled to a right of carriageway over a strip of land was conclusive that he was entitled to that right of carriageway, notwithstanding a long period of non-use of the carriageway by the plaintiff. That decision predated the inclusion of s.73 in the Transfer of Land Act in 1954. However in Riley v Penttila, Gillard J recognised the effect of the decision, holding that an easement notified on the title continues effective as an appurtenant easement to an estate unless and until it is removed by the Registrar under the Transfer of Land Act. In that case the plaintiffs claimed a declaration as to their rights over a reserve which formed part of a sub-division. The defendants had fenced off part of the reserve. Gillard J held that the plaintiff's rights were in the form of an easement. The defendants submitted that the plaintiffs had abandoned the easement. Gillard J held, as a matter of fact, that no such abandonment had occurred. His Honour further held that, in any event, any such alleged abandonment would be no answer to the claim of the plaintiffs for a declaration, as the easement had remained notified on the certificates of title to the plaintiffs' property.[21]

38 Pausing there, the point which is currently in contention was not in issue in Riley v Penttila. However, that case is relevant because Gillard J held that, so long as an easement remains noted on a certificate of title, it is effective, unless and until it is removed by the Registrar under s.73. That proposition is an important starting point for determining whether abandonment by a predecessor in title has any effect under s.73 of the Act.

39 The decisions in Webster v Strong and Riley v Penttila thus form the background to the decision of Tadgell J in Wolfe v Freijahs' Holdings Pty Ltd. In that case, the plaintiff Mrs Wolfe, was the registered proprietor of land in Horsham which was subject to a registered easement of carriageway. Since 1939 there had been a number of obstructions over the carriageway. In 1976 Mr and Mrs Freijah became registered proprietor of contiguous land. The easement was noted on the title to that property. In 1985 Mr and Mrs Freijah transferred their property to the defendant, Freijahs' Holdings Pty Ltd. Freijahs' Holdings Pty Ltd issued proceedings claiming declarations that it was entitled to enjoy a registered easement appurtenant to the land of which it was the registered proprietor. Mrs Wolfe applied to the Registrar of Titles under s.73(1) seeking removal of the easement from the Register book. In response, Freijahs' Holdings lodged a caveat forbidding removal of the easement. In turn Mrs Wolfe issued a summons calling on Freijahs' Holdings to show cause why the caveat should not be removed. Tadgell J upheld the claim by Freijahs' Holdings, and granted the declaration sought by it. His Honour dismissed the summons by Mrs Wolfe to remove the caveat.

40 One of the submissions by Freijahs' Holdings was that, relying on s.42(1) of the Transfer of Land Act, the notation of the carriageway over part of Mrs Wolfe's land was conclusive of the company's rights as registered proprietor of the dominant tenement; accordingly Mrs Wolfe must necessarily fail in her attempt to have the caveat removed. In response it was submitted on behalf of Mrs Wolfe that s.73 worked together with s.42, and thus the registration by Freijahs' Holdings of its interest was not conclusive of the question whether, hitherto, the easement had been abandoned and therefore should be removed by the Registrar.

41 Tadgell J did not find it necessary to resolve the point raised by those submissions. His Honour held that s.73 did incorporate the common law doctrine of abandonment into the Torrens system, which before that date did not apply to land under the Transfer of Land Act.[22] However his Honour held that the period of 30 years non-user contemplated by s.73(3) was the period immediately preceding the application for removal of the easement. The Registrar must take into account any evidence of an intention or desire to use it by any registered proprietor during that period. In the present case, Freijahs' Holdings, on taking title to the relevant property, had evinced an intention to use the easement. Accordingly on any view the Registrar could not find that the easement had been abandoned.[23]

42 Tadgell J noted that he reached his conclusion on a construction of s.73 which did not rely on s.42(1) or upon Webster v Strong or Riley v Penttila. However his Honour noted that the effect of those decisions was as follows:

" ... the abandonment by the registered proprietor of a dominant tenement or by his predecessors in title will not deprive him of the right to rely on the registered easement unless and until it is removed from the Register book pursuant to s.73 or, perhaps, unless he has put it out of his power to rely upon it against the proprietor of the servient tenement."[24]

"If, however, it were necessary for the company to rely before the Registrar on the conclusiveness of its title, it could simply assert it, since it has done nothing to deprive itself of its right to do so."[25]

44 Thus, while Tadgell J, in Wolfe's case, did not find it necessary to determine the issue, nonetheless his Honour expressed the view that Freijahs' Holdings Pty Ltd might have relied on the conclusiveness of its title before the Registrar in response to any claim that hitherto the easement had been abandoned. Thus understood, the views expressed by Tadgell J in Wolfe's case support the proposition advanced by Mr Sandbach, namely, that upon registration of his interest in the defendant's land with the relevant easement noted as appurtenant thereto, the defendant obtained an interest in the easement which could not be affected by any prior abandonment of the easement by his predecessors in title.

45 Mr Porter criticised the views expressed by Tadgell J in Wolfe's case on two main bases. First, he criticised the view of Tadgell J that s.73 is essentially a procedural provision, whereas s.42(1) is designed to confer or recognise substantive rights, and that the two provisions are not in conflict.[26] Mr Porter submitted that s.73 should be seen to be a substantive provision, since, as recognised by Tadgell J, it incorporated the common law principles relating to abandonment.

46 In my opinion that submission by Mr Porter should be rejected. As Tadgell J noted, until 1954, the common law principles of abandonment were not a part of the Torrens title system of land holding in Victoria. Section 102 of the Transfer of Land Act 1915 and s.102 of the Transfer of Land Act 1928 provided a mechanism whereby the Commissioner might remove an easement in the circumstances there prescribed. However those provisions did not incorporate the doctrines of abandonment. The position altered in 1954 when s.73 was introduced. It incorporated those principles. As Tadgell J observed, in incorporating those principles, s.73 also specified the procedure by which they were to be applied, namely, on application to the Registrar. Unless and until such an application is successfully made to the Registrar, the registered easement remains in full force appurtenant to the titles of both the dominant and servient tenements. In that way ss.42 and 73 work harmoniously. Thus, until the removal of the easement under s.73, it remains duly noted on the Register. The necessary consequence is that any previous abandonment of the easement by a predecessor in title could not disturb the interest of the current proprietor, such interest deriving from the registration of his or her interest on the certificate of title.

47 Secondly, Mr Porter submitted that Tadgell J wrongly distinguished the decision of the High Court in Treweeke's case, and the decision of Needham J in Proprietors Strata Plan case, as being inapplicable because of the different provisions of the New South Wales legislation which governed those decisions. Two points may be made in response to Mr Porter's submission. First, in Treweeke's case, McTiernan J did not express any view on the question of the effect of abandonment by a previous registered proprietor. Mason J recited the competing arguments, but found it unnecessary to resolve them.[27] Only Walsh J, in his dissenting judgment, was of the view that an abandonment by a previous proprietor may affect the rights of the current registered proprietor of the dominant tenement.[28] However his Honour expressly observed that that conclusion was a result of s.89(8) of the Conveyancing Act. In the Proprietors Strata Plan case Needham J considered that the effect of Treweeke's case was that, in considering whether an easement had been abandoned, he must have regard to the acts and omissions of previous registered proprietors.[29] However, as I have indicated, only Walsh J (in dissent) in Treweeke's case, was of that view. Secondly and in any event, with respect I consider that Tadgell J was correct in distinguishing Treweeke's case and the Proprietors Strata Plan case on the basis that the provisions of the New South Wales legislation were materially different to the provisions of the Transfer of Land Act. Section 89(1)(b) of the New South Wales Act provided that a court may modify or extinguish an easement on being satisfied that the persons "for the time being or from time to time" entitled to the easement had abandoned the easement. That provision alone, in my view, may suffice to entitle a court, relying on the New South Wales legislation, to take into account an abandonment by a previous proprietor. However, and more significantly, s.89(8) which was expressly referred to by Walsh J in Treweeke's case, provides that s.89 applies to land under the provisions of the Real Property Act 1900. In those two respects, like Tadgell J, I consider that the New South Wales legislation is relevantly different to the Victorian .

48 Mr Sandbach's submissions are also supported by views expressed in Besanko J in Yip v Frolich and anor.[30] In that case, the plaintiff, who was the owner of the dominant tenement, sought a declaration as to his rights in relation to the easement, an order that an obstruction to the easement be removed by the defendants, and an injunction restraining the defendants from depriving the plaintiff of full use and enjoyment of the easement. In response, the defendants contended that the easement had been abandoned by the plaintiffs and their predecessors in title. Besanko J observed that the Real Property Act 1886 (SA) was relevantly similar to the Transfer of Land Act 1958 (Vic). His Honour followed the decision of Tadgell J in Wolfe's case, and Gillard J in Riley v Penttila, and held that, under the Real Property Act, only the Registrar-General may extinguish an easement, which remains enforceable as long as it remains on the title. The Court cannot order the removal of the easement on the grounds that it has been abandoned under common law principles.[31] Thus his Honour held that even if he were to find there had been abandonment of the easement at common law, nonetheless he would be bound to recognise and give effect to the conclusive nature of the title, and thus the registered easement, unless and until it is removed from the title.[32] His Honour further held that if he was wrong in that conclusion, the defendants had failed to establish abandonment at common law in any event. In so holding, Besanko J expressed preference for the view that, each time a transfer of the dominant tenement takes place, there is by virtue of that transfer evidence of an intention by the proprietor of the dominant land not to abandon the easement. However his Honour considered it was not necessary for him to decide "this difficult point" and thus declined to do so.[33]

49 For the purpose of completeness I should refer to two decisions of O'Bryan J of this Court. The first decision is Hale v Dobbie and the Registrar of Titles.[34] In that case the plaintiffs, who owned the dominant tenement, issued two proceedings seeking declaratory relief. The defendants, the owners of the servient tenement, counterclaimed, seeking a declaration that the easement had been abandoned, and an order that the Registrar of Titles amend the Register book by deleting the easement from the certificate of title. The defendants based their counterclaim on the proposition that, for a period of almost 100 years, the easement had not been used by any of the owners of the dominant tenement. The defendants had originally made an application to the Registrar for the removal of the easement under s.73 of the Act. The plaintiffs countered by lodging a caveat under s.73(4) precluding the Registrar from proceeding with the application. O'Bryan J noted that the Court has jurisdiction to determine whether the caveat should be removed. His Honour then went on to say:

"Should the Court so determine the Court may order the Registrar to amend the Register book by deleting from the certificate of title the said easement pursuant to s.103(1)."[35]

50 O'Bryan J referred to Wolfe's case and Webster v Strong. Having done so his Honour rejected the submission made on behalf of the plaintiffs based on s.42(1) of the Transfer of Land Act. His Honour stated:

"The argument based upon indefeasibility of title was also relied upon by (counsel for the plaintiffs). Were the argument upheld, it would deprive s.73 of effective operation in every case in which the owner of the estate in the dominant tenement contested removal of an easement from the Register book. ...

In my opinion, the right stated in the grant of an easement is not indefeasible as it is subject to removal on application of a registered proprietor of the land over which the easement exists pursuant to s.73 of the Act if the easement has been abandoned or extinguished. The only purpose of s.73 is to allow the owner of a servient tenement to apply to have an easement affecting land removed from the Register by the prescribed procedure. The mere fact that an easement is registered on the certificate of the owner of the dominant tenement is no barrier to its removal when the conditions for removal are established."[36]

51 Relying on those principles O'Bryan J held that there had been, over the last century, abandonment of the easement. Accordingly his Honour declared that the easement had been abandoned and ordered that the Registrar of Titles amend the Register book by deleting the easement from the certificate of title.

52 In Symons v McNicholl and anor[37] the plaintiffs, as registered proprietors of the dominant tenement, commenced proceedings seeking injunctions retraining the defendants from obstructing the easement. The defendants, as registered proprietors of the servient tenement, resisted that claim and counterclaimed for a declaration that the easement had been abandoned, and seeking an order that the Registrar of Titles amend the Register book accordingly. The defendants relied on abandonment of the carriageway by the successive owners of the dominant tenement over the last 40 years, including three predecessors in title to the plaintiffs. As a matter of fact O'Bryan J held that the evidence did not establish an intention by any of the owners of the dominant tenement to abandon the easement. In conclusion, his Honour observed:

"It is unnecessary to consider an argument presented by Mr Cooke (counsel for the plaintiff) that the easement interest shown on the certificate of title is indefeasible. I was not attracted by the argument but it is unnecessary for me to determine the argument for I am not persuaded by the evidence that abandonment of the easement has been proved."[38]

53 With respect, the weight of authority, to which I have already referred, is against the views expressed by O'Bryan J in the above two cases. In particular, his Honour did not analyse the interrelationship between s.42(1) and s.73 of the Transfer of Land Act. Nor did his Honour, apparently, give any weight to the principle, expressed in Wolfe's case and in Riley v Penttila that the easement remains enforceable by the proprietor of the dominant tenement unless and until it is removed pursuant to s.73 of the Transfer of Land Act. That principle accords with the history of the introduction of s.73 into the Transfer of Land Act as outlined by Tadgell J in Wolfe's case. Further, it harmonises the principles of indefeasibility, entrenched in the Transfer of Land Act, by ss.40, 41, 42, 43 and 72, with the statutory right, created by s.73, to amend the Register, and thus remove the interest in the easement created by registration, on due application to the Registrar.

54 In my view it is a necessary corollary of the principle thus stated in Wolfe's case and Riley v Penttila, and adopted by Besanko J in Yip v Frolich, that the interest of the defendant in the easement, deriving from the registration of that interest under s.72 of the Transfer of Land Act, could not be affected by any antecedent abandonment of the easement. If, hypothetically, there had been an abandonment at common law of the easement by any of the defendant's predecessors in title, such abandonment could not have affected the title of any of the predecessors, unless and until it resulted in the removal of the easement from the Register pursuant to s.73 of the Transfer of Land Act. Unless and until that occurred the predecessor in title retained the interest in the easement by force of the registration of that interest on the title. Even if, contrary to that view, the interest of the predecessor in title to the easement had been somehow affected by an abandonment of the easement by the predecessor in title, in 1987 the defendant became registered proprietor of the defendant's property, with the easement recorded on that certificate of title as appurtenant to the defendant's property. It was by virtue of such registration that the defendant thereby derived his interest in the easement. That interest was not dependent upon, or resultant from, the prior interest of the predecessors in title. Rather it derived directly from the registration of the defendant as the proprietor of the dominant tenement. A fortiori, that registered interest of the defendant could not be affected by any previous abandonment of the easement by a predecessor in title.

55 The views which I have expressed above are, I consider, a necessary consequence of the Torrens system of land title. As Barwick CJ stated in Breskvar v Wall:[39]

"The Torrens system of registered title of which the Act is a form is not a system of registration of title but a system of title by registration. That which the certificate of title describes is not the title which the registered proprietor formerly had, or which but for the registration would have had. The title it certifies is not historical or derivative. It is the title which registration itself has vested in the proprietor. Consequently, a registration which results from a void instrument is effective according to the terms of the registration. It matters not what the cause of reason for the instrument is void."

56 Contrary to the views expressed by O'Bryan J in Hale v Dobbie and anor, I do not consider that the views I have just expressed would deprive s.73 of any effect. Clearly s.73 incorporates the common law principles of abandonment in so far as they affect the interest of the registered proprietor. Hence, the clear statutory function and intention of s.73 is to afford the owner of the servient tenement the right to establish, to the satisfaction of the Registrar, that the owner of the dominant tenement has abandoned the easement, so that the interest of that registered proprietor may be removed from the Register. It follows, then, that if I had concluded that there had been an abandonment of the easement by any of the predecessors in title to the defendant, that abandonment does not, and could not, affect the right of the defendant to the easement.

Conclusion

57 In summary then I have reached the following conclusions:

1. There has been no abandonment by the defendant of the easement.

2. The easement was not abandoned by the predecessors in title to the defendant.

3. If there had been such abandonment of the easement by any of the defendant's predecessors in title, that abandonment would not have affected the registered interest of the defendant in and to the easement.

58 It therefore follows that the plaintiff is not entitled to the relief sought in the originating motion, and thus the proceedings should be dismissed.

[1] Woolfe v Freijahs' Holdings Pty Ltd [1988] VicRp 92; [1988] VR 1017 at 1023 (Tadgell J).

[2] James v Stevenson [1893] AC 162 at 167; Woolfe v Freijahs' Holdings Pty Ltd (above) at 1023.

[3] Tapling v Jones [1865] EngR 333; (1865) 11 HL Cas 290 at 319; Scott v Pape (1886) 31 Ch D 554 to 558.

[4] McIntyre v Porter & Ors [1983] VicRp 104; [1983] 2 VR 439 at 444.

[5] Above at 1024.

[6] [1930] AC 640 at 647.

[7] [1971] 2 QB 528 at 553.

[8] Such as Treweeke v Thirty Six Wolseley Road Pty Ltd [1973] HCA 27; (1973) 128 CLR 274; Riley v Penttila [1974] VicRp 67; [1974] VR 547; Gotobed v Pridmore & Anor (1970) 115 Sol Jo 78; Ward v Ward [1852] EngR 654; (1852) 7 Exch 838; 155 ER 1189.

[9] [1993] VicRp 23; [1993] 1 VR 315 at 339.

[10] Above.

[11] See especially at pages 283-4, per McTiernan J, and at 303-4, per Mason J.

[12] At 291.

[13] Compare McIntyre v Porter (above) at 445.

[14] Tehidy Minerals Limited v Norman (above); Wolfe v Freijahs' Holdings Pty Ltd (above) at 1026; Yip v Frolich (2003) 86 SASR 162 at 177 (Besanko J).

[15] Above at 572.

[16] Above.

[17] Above at 572-3.

[18] [1926] VicLawRp 75; [1926] VLR 509.

[19] (1972) 126 CLR 376 at 385.

[20] [1979] 2 NSWLR 605.

[21] At 573.

[22] p.1023.

[23] p.1025.

[24] p.1026 (emphasis added).

[25] P.1026.

[26] p.1023.

[27] p.302.

[28] p. 285.

[29] At 616.

[30] (2003) 86 SASR 162.

[31] At [49].

[32] At [54].

[33] At [57].

[34] (Unreported, 22 April 1984) BC 9401259.

[35] At p.12.

[36] At p.14.

[37] (Unreported, Supreme Court of Victoria, 15 May 1998) BC 9802037.

[38] At p.11.

[39] Above at 385; see also Figgins Holdings Pty Ltd v SEA Enterprises Pty Ltd [1999] HCA 20; (1998) 196 CLR 245 at 262-4 (per Gaudron, Gummow and Callinan JJ); Hillpalm Pty Ltd v Heaven's Door Pty Ltd [2004] HCA 59; (2004) 220 CLR 472 at 491 (McHugh A-CJ, Hayne and Heydon JJ), 503 (Kirby J).