Pub brawl: Olympus Superannuation Fund (Tas) Pty Ltd V Recorder of Titles & Blue House Corner Pty Ltd

Page Seager successfully acted for Blue House Corner Pty Ltd, the owners of Hobart pub Irish Murphy’s, in establishing that its land had the benefit of a right of way over adjoining property owned by Olympus Superannuation Fund (TAS) Pty Ltd.

The dispute centred upon whether the owners of 21 and 23 Salamanca Place, the location of Irish Murphy’s Hobart, had a right of way over a small parcel of land at the rear of that land making up part of 25 Salamanca Place.

This dispute was argued over a century from the creation of the right of way, it is perhaps partly attributable to the value of the land in dispute as well as the importance of access to the rear courtyard of 21 and 23 Salamanca Place.

Historical context

George Adams, the founder of Tattersalls, owned much of the land in the block bounded by Gladstone Street, Salamanca Place, Montpelier Retreat and Kirksway Place in Hobart.

In 1915, following his death, the executors of his estate sold various parcels of this land, noting that some of the land was retained. The executors purported to reserve a right of way to themselves over one of the parcels of the land sold, part of 25 Salamanca Place, which made up a small area at the rear of 23 Salamanca Place.

The terms of the reservation was as follows:

“… but reserving nevertheless to the Vendors their heirs executors administrators and assigns and all persons authorised by them at all times hereafter by day or by night and for all purposes with or without horses carts carriages or wagons laden or unladen to go pass and repass and to drive cattle sheep and other animals along, over and upon all that piece of land shown on the said plan and therein surrounded by brown boundary lines being the land secondly hereinbefore described.” (Reservation)

The task of the court was to interpret and determine whether a right of way had been reserved and created upon some of the land being sold.

Blue House Corner asserted that it had a right of way over 25 Salamanca Place, whereas Olympus asserted that all that had been created in 1915 was a personal licence and therefore there was no right of way over its property.

Background of dispute

There was quite a torturous and lengthy court history to the matter.

• Application to correct omission in the Register – An application was made by Blue House Corner for the correction of an omission in the Register of Titles. Blue House Corner asserted that upon the various parcels of land being brought under the Torrens system the burden of the right of way was recorded on 25 Salamanca Place, however the corresponding benefit was not brought forward onto 21 and 23 Salamanca Place.
• Decision to correct omission – Subsequently, in 2019 the Recorder of Titles found that there was an omission and he recorded the benefit of the right of way on the two titles of Blue House Corner, 21 and 23 Salamanca Place.
• Challenge of the Recorder’s decision – That decision was challenged to the Supreme Court by Olympus, who sought that the benefit of the right of way be removed from the Register. Blow CJ held that, due to indefeasibility, the decision could not be reviewed.
• Appeal to the Full Court – On appeal, the Full Court determined that whilst Blow CJ was correct in respect of indefeasibility, there was error in Blow CJ’s decisions, specifically, he was required to determine whether in fact an easement had been created in 1915.
  That then necessitated a rehearing of the originating application before Blow CJ.

Key points of dispute argued in the rehearing of the originating application

The Reservation did not expressly state that a right of way was being created, nor did it expressly identify the land which was to have the benefit of the right of way.

Therefore, the court was required to interpret the right of way Reservation and to interpret the construction of the deed. Evidence of the material facts at the time of the execution of that deed was relevant to the task of construction. That required the court to consider the conveyance, the factual matrix and the physical layout of the land in question.

Decision

Blow CJ determined that the parties must have intended the conveyance to create a right of way belonging to some land as distinct from a mere licence personal to the trustees of the estate of George Adams. Olympus also submitted that if it was found that a right of way has been created, that 21 and 23 Salamanca Place was not the land for which the benefit was intended. Again, it was important to consider the situation at the time of the creation of the right of way. At that time the land retained by the estate of George Adams between 25 Salamanca Place and Gladstone Street was a single parcel of land for the purposes of the general law. In those circumstances, had the parties intended the benefit of the right of way to be annexed to only part of that retained land, then that would have been specified in the conveyance.

You can view the full decision of Blow CJ here.

Conclusion

This case illustrates the complexity of establishing property rights, particularly those originating from historical transactions, in this case from over a century ago.

This matter emphasises the importance of obtaining specialist legal advice when assessing the rights associated with your land and any potential claims over it.