Westfield Management Limited v Perpetual Trustee Company Limited - Assignment Example

Case Note: Name Institution Course Lecturer Date Westfield Management Limited v Perpetual Trustee Company Limited [2007] HCA 45; (2007) 233 CLR 528.  1.) Briefly explain what an "easement".  An easement provides a right of way or use of a real property owned by another person without possessing the property. In most cases, a landowner permits another landowner to use pathways across different pieces of property. Easement by necessity is acknowledged where one landowner can only have an access to a facility by passing across another landowner’s property. The common law considers an easement as a right and to benefit a landlocked owner (Burns 2010). 2.) Case details Case Name: Westfield Management Limited v Perpetual Trustee Company Limited [2007]. Case Number: HCA45 Case Summary: The High Court held that the use of easement would not be extended beyond what was granted. It was not expedient to impose a greater burden to a servient owner than what the owner had agreed on and accepted. In addition, the terms does not expressly provide for Westfield to travel across the property and the terms should not be interpreted as providing access to other remote parts of the property by going across it. Courts and Judges: Supreme Court NSW, Brereton J The Court of Appeal, Gleeson CJ and Heydon J High Court, Gleeson CJ, Gummow, Kirby, Heyne and Heydon JJ History in lower courts: As identified in Commonwealth Law Reports [2007], Westfield Management Ltd application to Supreme Court of NSW showed its claim to allow, as a registered owner of a dominant tenement, persons or vehicles use the driveway towards the dominant tenement and to be allowed to build access driveways, loading docks, packing spaces beyond the dominant tenement. A relief was given as the NSW Supreme Court agreed the use of a right of a way in a manner proposed by Westfield. Walker SC together with RG McHugh and Owens NJ argued for the appellant. Their point was that ordinary principles found in contract law also apply to easements and leases documents. The transaction account and is in consideration of modern construction principles for commercial purposes. The rights are created and the burden imposed in accordance to Torres land and meaning of a registered text can only be ascertained in contextual reading. Enabling access to the remote premises is also a benefit to the dominant tenement. However, the use of the property to benefit another party is limited. The easement set a free and full right for the carriageway to the registered party of dominant tenement and any other person authorized by the dominant tenant to go, pass, re-pass at all time for all purposes. Hutley SC with JC Giles and Free SJ argued for the respondent. They observed a constant approach in the past cases that a dominant tenement does not give a right for a throughway or for benefit to remote lands. If that should be the case, then any other grantee in standard form easement can have unlimited capacity that allows expansion beyond the dominant tenement. They interpreted the word “to and from” as creating limitation and they do not indicate a permission of access across the remoter tenements by a dominant tenement. There is no provision of relevant insurance or routine maintenance of the land where the right of way is spelled. That means there is no possibility of allowing access to additional properties other than the stated one. They further indicated that the words “for all purposes” were only used to refer to the dominant tenement only (High Court of Australia 2007). Afterwards, the decision was overturned by the NSW Court of Appeal. 3.) Facts of the case.  As Weir (2010) the case facts were as detailed: Both the properties involved are commercial buildings that front Pitt Street Mall in Sydney’s CBD. Pitt Street Mall does not have ordinary vehicular access as it is only a pedestrian zone. Perpetual Company owns Glasshouse that front to both Pitt Street Mall and King Street. Westfield owns the Skygarden located in the next door. Skygarden benefited by a 6.6 m wide right of a way underneath Glasshouse to enable vehicle access to and from King Street. That right of way was created in 1980’s before either Westfield or Perpetual owned these properties. In addition, Westfield owns Centrepoint and Imperial Arcade that adjoin Skygarden. In its proposal to develop the three sites, Westfield proposed to use the right of way provided under Glasshouse so as to provide the build loading docks and parking spaces on Centrepoint and Imperial Arcade sites with vehicular right of entry to and from King Street. The manner in which Westfield proposed right of entry was agreed by NSW Supreme Court. The decision was overturned by NSW Court of Appeal. Westfield went ahead to appeal to High Court for reinstatement of the Supreme Court decision. Westfield did not succeed after the appeal. 4.) Issue(s) on appeal.  There were two issues on appeal that Westfield claimed based on primary court’s decision; One, it was not in excess for Westfield to use the right of way for accessing the dominant tenement for purposes contemplated at the time of grant. The court had admitted extrinsic evidence towards the purposes the appellant contended to be in contemplation. It recognized that the parties were not the owners of properties in question during the creation of easement. 5.) Summary of the judgment.  Following the Commonwealth Law Reports [2007] discussion, Brereton J of NSW Supreme Court granted declaratory relief to effect what Westfield sought. Following an appeal by Perpetual, Beazley, Hudgson and Tobias, the judges in the Court of Appeal set aside Brereton J orders. Hudgson who delivered the unanimous decision of the court argued that the words “to and from” did not exclude a possibility that such a right extend towards the dominant tenement and going across it into further land as well as returning across it. However, there is no certainty as to allow or grant authorization of going across to further properties as the words ‘and across’ were not readily added. The phrase “for all purpose” is stated closely to passage between the tenements (Weir 2012). The High Court dismissed Westfield appeal based on the following reasons: As seen in High Court of Australia (2007), the terms of easement as appeared emphasized on phrases “to go, pass, re-pass” were in accordance to the statute of RP Act s 181A (4). However, the activities permitted in respect to Glasshouse does not expressly state “across the lots” in the formulation. The expression only describes entry from one point, the King Street through a passage across Glasshouse to reach the destination, Skygarden. The Easement in the dispute did not speak of any activity “across” but stated “to and from” Skygarden as the dominant tenement. The easement therefore did not permit the use as required by Westfield. The terms did not express any right to go, pass and re-pass to, from and across dominant tenement across servient tenement. The phrase ‘for all purposes’ encompass any of the ends that are sought by the party to be achieved by utilizing that Easement according to its terms. It was not possible to extend the use of easement beyond what was seen as the scope of the grant. The general principle in Conveyance Act allows the party the rights that are necessary to enjoy the rights granted. In the case, it would be unnecessary to enjoy the rights in accessing Skygarden land and extending the rights beyond what is granted in the easement which would result to a burden to the party that accepted the easement (Weir 2012). 6.) Ratio decidendi and important obiter dicta in the case. The ratio decidendi in the case was necessitated by an emphasis on disagreed issue. An application of Harris v Flower showed the direction the case would take and the outcomes as the case upheld that easement would not go beyond what was agreed. The head notes by Hudgson that opened the judgment highlights the legal principles by the case, the opening words were ‘although’. The judges outlined the case facts based on the tenements before making the decision which indicated the party that had a greater possibility of winning. Key facts were established to help find the ratio and are highlighted as they were discussed at length and emphasized by the judges. There phrases that were emphasized predicted the party that would win. Though there were multiple decisions, the Court of Appeal and High Court were likely to have similar decisions (Finch & Fafinski 2011). Obiter dicta in the case can be identified by the mention of “the cost for repair and maintenance of insurance”. The issue of repair and insurance were not insisted in the case but were spoken as an additional (Siems 2008).  7.) Discuss the importance this decision has for the law The decision by the High Court on the case is important as it hinders hundreds of easement cases that may re-surface and opening floodgates to unnecessary claims. It is an avoidance to create a loophole in the law and rights of property in future. The case will be used in future to affirm that the court had a unanimous decision about the extent of easement and therefore, it will guide the primary courts to avoid such appeals in future (Weir 2010). References Burns, F 2010, Implied Easements and the Integrity of the Torrens System. Bond Law Review, 21(2), 2. Commonwealth Law Reports [2007] Westfield Management Limited, Appellant; Plaintiff, and Perpetual Trustee Company Limited, Respondent; Defendant, [2007] HCA 45. Finch, E., & Fafinski, S 2011, Legal skills. Oxford University Press. High Court of Australia (2007, October) Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ . Westfield Management Limited; Appellant and Perpetual Trustee Company Limited, Respondent. Source: https://jade.barnet.com.au/Jade.html#article=15553. Siems, M. M 2008, Legal Originality. Oxford Journal of Legal Studies, 28(1), 147-164. Weir, M 2010, The Westfield Case: A Change for the Better? Bond Law Review, 21(2), 10. Weir, M 2012, Westfield 5 years on. Australian Property Law Journal, 21(2), 166-179. Read More