WHY DID THE COURT SYSTEM GO WRONG IN WA? HCA

IN THE HIGH COURT OF AUSTRALIA   

PERTH REGISTRY No.              of 20__

BETWEEN: PAUL CHUNG KIONG CHIN

Ex-Parte Applicant

APPLICATION FOR SPECIAL LEAVE TO APPEAL

The applicant applies for special leave to appeal from part of the judgment of the COURT OF APPEAL OF THE SUPREME COURT OF WESTERN AUSTRALIA CORAM: MITCHELL JA, BEECH JA, JENKINS J in CHIN [2019] WASCA 116 given on 7TH AUGUST, 2019 (the Court Below).

Part I:

THE PROPOSED GROUNDS OF APPEAL IF SPECIAL LEAVE IS GRANTED:

  

1. The Court Below erred in facts and in laws upon the issue of the “exclusivity of unit 1” at [14.2] when it dismissed the appeal at [1] by omitting and/or avoiding the fourteen jurisdictional facts at [5, 11,12, 13, 14.1, 14.2 ,15, 16, 17 and 18] summarized as: s.52PLA, Wheeldon v Burrows and Unity of Possession (the Missing Jurisdictional Facts):  

1.1. that St. Marks had used the statute law of Part V Property Law Act, 1969(WA) s.52 Implied Subdivisional Quasi Easements of the Wheeldon v Burrows (1879) LR 12 Ch D 31 type at [12,13, 14.1, 14.2, 17] to implement its legislative intent of Parliament of Western Australia for the purpose of the exclusivity right of statutory planning approval dated 19.12.1997 (the Exclusivity Right) for unit 1 (the S.52 Part V PLASIQE).

1.2. The S.52 Part V PLASIQE is for implied creation of the Singular and Exclusive Victoria Road Lunch Bar at unit 1/383 Victoria Road, Malaga WA 6090 (the SEVRLB).

1.3. The SEVRLB burdens permanently and exclusively all the nineteen remaining units of the servant-lands of lot 12 including unit 10 at [5: lines: 4,5 & 6]; [10: lines 4 through 14] and at [11] (the 19 Servient Lands) from ever operating the SEVRLB (the SEVRLB of S.52 PARTV PLAIQE).

1.4. St. Marks as the common owner of the twenty units of Lot 12 since 1996 at [White Appeal Book (WAB) p.30 item1] whilst in unity of possession did “contract with itself” by making the SEVRLB of S.52 Part V PLAIQE Application on 15.10.1997 (Application) at [WAB: p.30 item 4] (St. Marks S.52 PLA Contract With Itself).

1.5.St. Marks S.52 PLA Contract With Itself had resulted in the Approval for the common lunch bar for all the twenty units of Lot 12 by the Statutory Planning Authority of WA on 19.12.1997 (WAPA) as evidenced by the commonality of the Application No. SP:DMC P190639 at [WAB: p.30 item 5; p.31 items 6 to 11; p.32 item 8], at [Blue Appeal Book (BAB) p. 45 to 61, 95] (the Approval).

1.6. With the Approval, St Marks entered into the second stage of the “S.52 PLA Contract with Another” on 4.8.1998 when it attached the S.52 Part V PLASIQE to unit 1 and sold it to its first purchasers, the Filippous at [WAB: p.31 items 6 to 11] (the predecessors-in-title of the Appellant) (the Another) at a premium price: consequently the Appellant at [WAB: p.32 item 10] do inherit that “Exclusivity Right” since the 23.2.2000 (the Inherited Exclusivity Right).

1.7. Subsequent to the Inherited Exclusivity Right, St Marks then as the then common owner of all the 19 Servient Lands (the Retained Lands) did perform the third stage of the “S.52 PLA contract with Others"at [BAB: p.79] [Others] which indicates that the title of unit 1 is the first title issued on 4.8.1998 and the title to unit 10 is the last title issued on a date subsequent to 4.8.1998 with no express reservations of the implied grant]: the Others are the Retained Land Owners who came to the scene subsequent to 4.8.1998 (St Mark s.52PLA: Contract With Others).

1.8. At [14.1]the S.52PLA Contract With Itself is the power/authority of St. Marks(pre-4.8.1998) to confer the Approval upon unit 1(St Mark s.52PLA Conferral of Approval on Unit 1).

1.9. At [14.2] the S.52PLA Contract With Another is the power/authority of St. Marks to  confer the St. Mark s.52 PLA Conferral of Approval on Unit 1 on the Another on 4.8.1998 (St. Mark s.52PLA Sale of the Conferral of Approval on Unit 1 to Another).

1.10. At [15], the S.52PLA Contract with Others is the power/authority of St. Marks as the single common owner of the Retained Lands after the Sale of the Conferral of Approval on Unit 1 to bind permanently the Others with the burdens of that benefit of the SEVRLB of S.52 PARTV PLAIQE upon those Retained Lands (St. Mark S.52 PLA Sale of the Nineteen Retained Lands).

1.11. At [16, 17 and18] the Record of the statutory planning approval authority for the singularity of unit 1 land use as the SEVRLB at [BAB: p.60] as LUNCH BAR vis-a-vis a similar statutory planning NON-APPROVAL for unit 10 at [BAB:p.71] as the non-singularity or non-plurality of the faked “AMENDMENT TO LUNCH BAR APPROVAL” with its real GENERAL INDUSTRIAL category of land use but without the inscription of the faked “land use” (deliberately left BLANK): all these faked information are occasioned by the unit 10 owner having misled the WA Planning Authority (WAPA) as to the alleged non-existence of the SEVRLB of Part V PLASIQE [BAB: p.66, 69 at sub-paras (f) respectively; and p. 74 dated 27.7.2015] (the Faked Info): despite the Fake Info, the WAPA records the the truth of the Exclusivity Right of the Inherited Exclusivity Rightat [WAB: Submissions: pp. 28 and 29] (the WAPA Record).

1.12. The WAPA Record as per the Faked Info is therefore never lawfully amended and can never be so amended and should never be differently construed by the Court Below so as to have the legal effect of transgressing the enforceability at law of the SEVRLB of S.52 Part V PLAIQE at [BAB:p.78 title deed of unit 10 issued on 17.8.2006], [WAB: pp.28, 29] and at [BAB: p.10 para.32] because there was no Implied Reservation for Unit 10 on 4.8.1998 or at the time of the Implied Grant to Unit 1 (the Enforceability at Law of the SEVRLB).

1.13. The Seven Building Blocks for the creation of the SEVRLB of S.52 Part V PLAISQE is described clearly albeit mistakenly vis-a-vis the Enforceability at Law of the SEVRLB by the primary judge His Honour Vaughan J at [BAB: p.10 para.32] and [BAB: p.14 para.50] (the Seven s.49 PLA Implied Instruments Evidenced in Writing).

1.14. The Seven s.49 PLA Implied Instruments Evidenced In Writing is not required in law to satisfy the Statute of Frauds 1644 (UK) requirements in writing as per the legislative intent of Part V of the PLA in the Explanatory Memorandum of the Property Law Bill, 1969 (WA) (the Legislative Intent of s.49 PLA Implied Instruments)     

THE ORDERS SOUGHT IF SPECIAL LEAVE IS GRANTED

1. The Special Leave Order pursuant to s.73(1) of the Commonwealth of Australia Constitution Act 1901 (Cth) is for the apex court’s re-construction and re-validation of the Exclusivity Right and that it BE and is GRANTED to the Appellant based on the Fourteen Jurisdictional Errors on the face of court record (the Special Leave Order).

2. The Special Leave Order involves the interposition of the apex court to redress the errors of law appearing on the face of the record of the Court Below, which would otherwise left the Appellant to be condemned unheard (the Denial of Natural Justice to the Appellant).

3. The SEVRLB of S.52 Part V PLAISQE is based on the principle of the Rule of Law with regard to the Enforceability at Law of the SEVRLB as everyone is equal before the law (Equality Before the Law).

4. The Equality Before the Law are raising serious questions of general legal and public importance involving substantial questions of principles of law affecting the administration of justice, particularly the administration of land law in that the Denial of Natural Justice to the Appellant had caused the wrongdoings of unit 10 to be condoned and to be left without a remedy; hence the necessity for its Re-Determination by a fresh panel (the Re-Determination of the Issue of Exclusivity Right).

5. The Re-Determination of the Issue of Exclusivity Right is necessitated by the non-existent "path of reasoning" that should be led from its Court Below mere assertion of denouncing the Exclusivity Rights without the provision of adequate reason that can effectively counters the Fourteen Missing Jurisdictional Errors, otherwise it (Court Below) would be reasonably considered as having abandoned its duties of not having taken into considerations the relevant fact that the Appellant had suffered compensable injury since 14.2.2016 in the clear evidence that unit 10 is the primary cause of the utter destruction of that Exclusivity Right with a $100,000.00 worth of plant equipment destroyed and the ongoing recurrence of strata title company annual fees of $7,000.00 and it cannot attract a tenant to alleviate that costs; thereby rendering it a white elephant (Current Quasi Easements: A White Elephant).    

Part II:

HOW THE SPECIAL LEAVE QUESTIONS ARISE:

1) The Special Leave Order arises by virtue of the appellate jurisdiction of the apex court pursuant to s.35A of the Judiciary Act, 1903 (Cth) to supervise the Court Below in order to provide a reasoning path for its Judgment (the Appellate Jurisdiction).

2) The Appellate Jurisdiction must be exercised because there exists in the Exclusivity Rights an important question of law of general public importance whether because of its general application or otherwise (the Exclusivity Rights is of Sufficient Public Importance).

3) There is an urgent need for the Exclusivity Rights of Sufficient Public Importance to be made certain otherwise it would mean that the public would lose its confidence in the justice system prevailing in Western Australia that there is no equality before the law for everyone and that the law is a respecter of persons and therefore the apex court is respected as the Final Arbiter in this uncertainty of the law created by the Court below (the Final Arbiter).

Part III:

BRIEF ARGUMENT FOR GRANT OF SPECIAL LEAVE:

1) The Final Report [2010] VLRC 22 on the topic: Easements and Covenants of the Victorian Law Reform Commission – is based on the Property Law Report 1958 (Vic) from which the Property Law Act, 1969 (WA) is derived.  Its recommendations therefore applies mutatis mutandis to the situation of the SEVRLB of S.52 PARTV PLAIQE and the Fourteen Missing Jurisdictional Facts of the Court Below, in terms of the following: (The Final Report)

1.1) St. Marks had the implied power by virtue of Part V PLA to grant the Implied Quasi Easement to unit 1 to the exclusion of unit 10 (the Implied Grant).  

1.2) The Implied Grant is is made without any Implied Reservations (the Missing Implied Reservations).

1.3) The Implied Grant is made on the basis of the Seven s.49 PLA implied instruments (the Implied Instruments).

1.4) The Implied Grant and the Missing Implied Reservations based on the Implied Instruments gives effect to the legislative intent of the Parliament of Western Australia when it passed the EXPLANATORY MEMORANDUM to Part V of the Property Law Bill 1969 which became the PLA (the Legislative Intent).

1.5) The Appellant’s Ex-Parte Originating Summons in CIV: 2074 of 2018 (the O.S) is an application to the Supreme Court of Western Australia to provide a valid construction and validation of the undisputed facts and law before it and three court officers and five judges of the Courts Below had failed to perform its duties (the Failure of the Court Below).      

1.6. If there were no Failure of the Court Below, the O.S. would not have been wrongly constructed and wrongly validated as an abuse of process by virtue of its valid and legitimate cause of action in accordance with the law (the Validity of the O.S.).   

1.7. By way of the Validity of the O.S. the intending defendants as the unit 10 owner should be given a chance to show cause as to the applicability of the Exclusivity Rights (the Show Cause).  

1.8. The Show Cause should accede to the following elements of the SEVRLB of S.52 PARTV PLAIQE in terms of the following:

1.8.1. The Implied Covenants are of the seven s.49 Implied Instruments should be construed as having three implied binding covenants of the Implied Easements (the Implied Covenants):

1.8.1.1. St. Marks S.52 PLA Contract with Itself.

1.8.1.2. St. Marks S.52 PLA Contract with Another;

1.8.1.3. St. Marks S.52 PLA Contract with Nineteen Others.

1.8.2.The Implied Covenants of the three s.52 PLA Implied Covenants can be either express or implied (the Implied Covenants).

1.8.3. The Implied Covenants is capable of being enforced in like manner as if they had been entered into with each of the 20 unit owners of the original land Lot 12, alone.

Part IV:

REASON WHY A COSTS ORDER SHOULD NOT BE MADE IN FAVOUR OF THE RESPONDENT:

1) The Appellant/Applicant began these proceedings in the primary court and the Court Below in his capacity as an Ex-parte Plaintiff/Appellant and therefore and he has not involved the Intended Defendants as yet as those ex-parte documents has never been ordered to be served upon them  (The Filed Ex-Parte Papers).

2) By reason of the Filed Ex-Parte Papers, this apex court is required to order an ex-parte Re-Determination of the Issue of the Exclusivity Right of the Appellant by another panel of judges of the Court of Appeal of the State Court as the original suit is by way of Originating Summons for the court to determine the construction and the validity of the laws which are based on undisputable facts and laws (The Re-Determination of Undisputable Facts and Laws).

3) Once the Re-Determination of Undisputable Facts and Laws have been achieved, the Appellant is then required by the Court to have the Ex-Parte Papers served upon the Intending Defendants to show cause why the Re-Determined Orders should not be enforced: if the Appellant were to lose the case then, only then the Appellant could be made liable for any costs orders to the other party (the Contingent Liability of the Appellant for Costs).

4) The Intended Defendants have not been privy to the Contingent Liability of the Appellant for Costs so far until and unless this Court orders a re-determination of the Issue of Exclusivity and requires the Intended Defendants to be served with an Order as to show cause as to whether they have a defence to the Appellant's Legitimate Cause of Action.

Part V:

LIST OF AUTHORITIES IDENTIFYING PARAGRAPHS OF RELEVANT PASSAGES:

1. Report on The Doctrine of Implied Grant: the rule in Wheeldon v. Burrows - A Report prepared the British Columbia Law Institute by the Members of the Real Property Law reform (Phase 2) Project Committee, BCLI Report No.65, January, 2012, British Columbia Law Institute found at: http://www.bcli.org/sites/default/files/report_65_implied_grant.pdf at pp.1 &2, footnotes: 2, 3, 4 and 5. But unlike in Western Australia the Exclusivity Right conferred by Part V of the Property Law Act, 1969 is of a permanent nature and will bind the nineteen servient tenements permanently.

2. GREG TAYLOR, Associate Professor, Faculty of Law, Monash University in his article entitled EASEMENTS IMPLIED IN A GRANT — AWAY WITH ‘CONTINUOUS AND APPARENT’ found at http://www.austlii.edu.au/au/journals/MonashULawRw/2012/17.pdf.  At p.129 the learned author refers to the common law rule of Implied Quasi Easements of the Wheeldon b Burrows kind. At p.140 the learned he also refers to the Wheeldon doctrine to the effect that St. Marks as the grantor must not derogate from its own grant which embodies in that legal maxim a rule of common honesty.

3. Ferris, Graham J, Solicitor of the Supreme Court and Lecturer at Law at the University Sheffield in his article entitled: Problems Postponed: The Rule In Wheeldon v Burrows and Wheeler v Saunders; It was first Published in Web Journal of Current Legal Issues in association with Blackstone Press Ltd and found in the United Kingdom Journals at Austlii. The learned author refers to the two dicta of the Rule of Wheeldon v Burrows originating from the judgement of Thesigner LJ at pp. 49 and 58 to 59 and they are about Implied Quasi Easements which are referable to the issue of Exclusivity Rights of this Application. It is found at: : http://www.bailii.org/cgi-bin/markup.cgi?doc=uk/other/journals/WebJCLI/1996/issue3/ferris3.html&query=title(wheeldon%20and%20burrows%20)

4. Peter Nygh and Peter Butt (eds), Butterworths Australian Property Law Dictionary (Butterworths, 1997) 122 have provided the definition of Implied Easement which is also referable to the Exclusivity Right of this appeal. The definition with its refined elements that an implied quasi easement is a grant by the original owner in unity of possession and that grant need not be in expressed form but can be in implied forms and this is contained in the rest of the Final Report of the Victoria Law Reform Commission Report entitled: Easements and Covenants: Final Report [2010] VLRC 22 Final Report 22 endorsed by Professor Neil Rees as its Chairperson on 17 December 2010. The Report can be found at the website: http://www.austlii.edu.au/cgi-bin/sinodisp/au/other/lawreform/VLRC/2010/22.html?stem=0&synonyms=0&query=subdivisional%20implied%20easements.  

PART VI:

PARTICULAR CONSTITUTIONAL PROVISIONS, STATUTES, STATUTORY INSTRUMENTS (BEING SET OUT VERBATIM) WHICH ARE APPLICABLE TO THE EXCLUVISITY RIGHT AND REFERABLE TO PART III PIECES OF LEGISLATION.

1) The Legislative Intent of Parliament for Part V of PLA is stated in the Property Law Bill, 1969 (WA) EXPLANATORY MEMORANDUM as follows:

“Clauses 45 to 52 will obviate the need in conveyances and deeds, including company charges, for many lengthy covenants to be spelt out. They will now be implied by virtue of this Part [PART V PLA]. The result will be to shorten many conveyancing documents and save expenses.  This will bring the State in line with other States (Except Queensland) and dispense with the need for special forms for use in Western Australia when a document is to be prepared for “all states” basis as often happens with charges given by companies whose operations are nation- wide”[MY EMPHASIS].

2) S. 52 Part V PLASIQE is enforceable by operation of law by virtue of s.45(6) PLA:  which provides as follows:

Covenants entered into by a person with himself and another or others. Cf: Vic Act 6344 s. 82.

52. (1) Any covenant, whether express or implied, or agreement entered into by a person with himself and one or more other persons shall be construed and be capable of being enforced in like manner as if the covenant or agreement had been entered into with the other person or persons alone.

S.45(6) PLA provides:

The benefit of a covenant implied by virtue of this section is annexed and incident to, and goes with, the estate or interest of the implied covenantee, and is capable of being enforced by every person in whom that estate or interest is, for the whole or any part thereof, from time to time vested.

3) The Common principle of Implied Quasi Easement labeled above as the “S.52 Part V PLASIQE” is found at: https://en.wikipedia.org/wiki/Wheeldon_v_Burrows 

in these words:

“Wheeldon v Burrows (1879) LR 12 Ch D 31 is an English land law case confirming and governing a means of the implied grant or grants of easements — the implied grant of all continuous and apparent inchoate easements (quasi easements, that is they would be easements if the land were not before transfer in unity of possession and title) to a transferree of part, unless expressly excluded. The case consolidated one of the three current methods by which an easement can be acquired by implied grant.”

4) Unit 10 is correspondingly burdened by the S.52 Part V PLAISQE unless there is an “Implied Reservation” made by St. Marks at the time of the “Implied Grant” as required by the law in s.48(1) PLA in these words:

“Burdens of Covenants Relating to Land: Victoria Act 6344 s.79

48. (1) Unless a contrary intention is expressed, a covenant relating to any land of a covenantor is capable of being bound by him, shall be deemed to be made by the covenantor on behalf of himself, his successors in title and the persons deriving title under him or them, and, has effect as if those successors and other persons were expressed.”

5) The S.52 Part V PLASIQE is permanently attached to unit 1 by St. Marks on 4.8.1998 by

operation of law at s.49 PLA which provides:

Constructions of Covenants Affecting Land. Cf. Victoria Act 6344 s. 79A

49. (1) It is hereby declared that when the benefit of a restriction as to the user of or the building on any land is or has been annexed or purports to be annexed by any instrument to other land the benefit shall, unless it is expressly provided to the contrary, be deemed to be and always to have been annexed to the whole and to each part of that other land capable of benefiting from the restriction. (2) In this section "land" includes land that is under the provisions of the Transfer of Land Act, 1893.

6) The Part V PLASIQE commenced on 19.12.1997 and by 18.12.2018, the Part V PLAISQE or the Exclusivity Right of the Appellant has met with the condition of the prescribed 20 years for it to become a quasi-implied easement by prescription.

7) The s.62 of the Property Law Act, 1925 UK found similarities with s.62 of the Property Law Act, 1958 (Vic) and these provisions are in accord with s.68(1A) of the Transfer of Land Act, 1893 WA which transfers the Part V PLAISQE or the Exclusivity Right to the Appellant and which provides:

(1A) Despite subsection (1), the land which shall be included in any certificate of title or registered instrument shall be deemed to be subject to the reservations exceptions conditions and powers (if any) contained in the grant thereof or transfer of the fee simple or otherwise and to any rights subsisting under any adverse possession of such land and to any public rights of way and to any easements acquired by enjoyment or user or subsisting over or upon or affecting such land and to any unpaid rates and to any mining lease or licence issued under the provisions of any statute and to any prior unregistered lease or agreement for lease or for letting for a term not exceeding 5 years to a tenant in actual possession notwithstanding the same respectively may not be specially notified as encumbrances on such certificate or instrument but no option of purchase or renewal in any such lease or agreement shall be valid as against a subsequent registered interest unless such lease or agreement is registered or protected by caveat.

8. S.4 of the Strata Titles Act, 1985(WA) (the Act) in Division 1:

Subdivision into lots and common property

(1) Land may be subdivided into lots, or lots and common property, by the registration of a strata plan or a survey-strata plan.

(1a) A strata plan is a plan that —

(a) is described as such in its title or heading; and

(b) shows the whole or any part of the land comprised in the plan as being divided into 2 or more lots; and

(c) complies with section 5,

and includes any amendment duly made to that plan.

(2) Where a strata/survey-strata plan is registered under this Act, the lots comprised in the

plan, or any one or more of them, may devolve or be transferred, leased, mortgaged or otherwise dealt with in the same manner and form as land held under the provisions of the Transfer of Land Act 1893.

(3)  Where a strata/survey-strata plan is registered under this Act, a memorial shall be

entered on the certificate of title relating to the parcel and thereupon the Registrar of Titles may create and register a separate certificate of title for each lot together with the share of common property appurtenant to that lot.

5. Easements and restrictions as to use implied or created by this Act, other than an

easement created by section 5D, shall take effect without any memorial or notification in the Register in relation to the dominant or servient tenements and without any express indication of those tenements.

6)  Subject to this section, any transfer, lease, mortgage or other dealing affecting a lot has the same

effect in relation to the lot as a similar dealing affecting a lot on a plan of subdivision lodged pursuant to section 166 of the Transfer of Land Act 1893 has in relation to such a lot.

9. Section 5 D Easement (of s.5H type) is not the type of Wheeldon v Burrow Implied

Easements that is required to be registered in the Title Deeds of Unit 1 and Unit 10 as both title deeds are not of survey-strata plan type of s.4(1) (1b) of the Act, as it provides:

 

5D: Creation of easements by notation on survey-strata plans

(1) A survey-strata plan lodged for registration may, in accordance with this section, provide for easements that will have effect on registration of the plan.

(2) An easement that may be provided for under this section on a survey-strata plan is an easement —

(a) of a kind prescribed by the regulations made for the purposes of section 5H; and

(b) having effect in favour of a lot (the dominant lot ), and against another lot (the servient lot), in the scheme to which the plan relates.

(3) An easement under this section is created on the registration of the plan if there are noted on the plan —

(a) the location of the easement; and

(b) the dominant and servient lots; and

(c) a specification of the easement by use of the short form description prescribed by the regulations for that kind of easement.

(4) A notation under subsection (3)(a) or (b) is to be in accordance with the regulations.

(5) This section is in addition to any other method by which an easement may be created in respect of lots in a survey-strata scheme.

10. Part V PLASIQE or the Exclusivity Right of the Appellant is not an easement created

under s.5D of the Act and the twenty units of Lot 12 are indicated as the s.4(1a) Strata Plan instead of the s.4(1)(b) Survey-Strata Plan at [BAB: p.78]: s.4(5) and therefore s.5D exempts the Part V PLASIQE from the requirement of any memorial or notification in the Register of Land Titles at Landgate or in the title deeds of both properties (the Exemption of Part V PLAISE as a Memorial).

 

11. S. 73(1) of the Commonwealth of Australia Constitution Act, 1901 (Cth):

“73  Appellate jurisdiction of High Court

The High Court shall have jurisdiction, with such exceptions and subject to such regulations as the Parliament prescribes, to hear and determine appeals from all judgments, decrees, orders, and sentences:

(i)  of any Justice or Justices exercising the original jurisdiction of the High Court;

(ii)  of any other federal court, or court exercising federal jurisdiction; or of the Supreme Court of any State, or of any other court of any State from which at the establishment of the Commonwealth an appeal lies to the Queen in Council;

(iii)  of the Inter-State Commission, but as to questions of law only;

and the judgment of the High Court in all such cases shall be final and conclusive.

But no exception or regulation prescribed by the Parliament shall prevent the High Court from hearing and determining any appeal from the Supreme Court of a State in any matter in which at the establishment of the Commonwealth an appeal lies from such Supreme Court to the Queen in Council.

Until the Parliament otherwise provides, the conditions of and restrictions on appeals to the Queen in Council from the Supreme Courts of the several States shall be applicable to appeals from them to the High Court.”

12. The State of Victoria Report on the Exclusivity Right or the Common Law Implied Easements which is similar to the notion of S.52 Part VPLASIQE in WA. The Report is entitled: Chapter 4: Implied and Prescriptive Easements of the Victoria Law Reform Commission Final Report 2 found at: https://www.lawreform.vic.gov.au/sites/default/files/EandC_Final_Report_ch_4.pdf states, inter alia, the following:

“4.7…. that private easements can be expressly created at common law either by grant or by reservation. The distinction between grant and reservation also matters when discussing implied easements. Some types of implied easements can only be created by implied grant.

4.8 An easement created by implied grant is an easement over land retained by the vendor for the benefit of the land sold to the purchaser.  

4.9 Conversely, an easement by implied reservation is an easement over the land sold to the purchaser for the benefit of land retained by the vendor.  

4.10 The types of easements that can be created at common law by implication include:

• easements of necessity

• intended easements

• easements implied under the rule in Wheeldon v Burrows.

Easements of necessity

4.11 Under the doctrine of necessity, the grant or reservation of an easement may be implied at common law. The easement must be ‘absolutely necessary’ for the use of the land, such as a right of way to access an otherwise landlocked parcel.

4.12 The doctrine relies on the actual or presumed intention of the parties rather than on public policy.  If the parties did not intend to create the easement, it will not be created despite its necessity. For example, in North Sydney Printing Pty Ltd v Sabemo Investment Corporation Pty Ltd, a lot was subdivided and part sold without an easement, leaving the remaining portion landlocked. The court held that an easement of necessity was not created as there was in fact no intention to retain access to the remaining portion.

Intended easements

4.13 Intended easements are easements that are implied in order to give effect to the common intention of the vendor and the purchaser as to the proposed use of the land. The easements can be either impliedly granted to a purchaser or impliedly reserved by a vendor. For example, the grant of a right of way to service a building might be implied where the vendor knew of the purchaser’s plan to construct the building on unimproved land.

The rule in Wheeldon v Burrows

4.14 Under the rule in Wheeldon v Burrows, the grant of an easement may be implied where the vendor enjoyed a ‘quasi-easement’ over the retained land before the sale. A quasi-easement is a use that would be capable of being an easement if the servient and dominant lands were owned or occupied by different persons. 

4.16 The conditions under which a quasi-easement will become an implied easement on the sale of the land are:  

• at the time of the sale, the exercise of the quasi-easement was continuous and apparent

• the quasi-easement is necessary for the reasonable enjoyment of the land sold

• at the time of the sale, the vendor used the quasi-easement for the benefit of the land sold. 

4.17 If all the conditions are satisfied, the quasi-easement becomes an implied easement over land retained by the vendor for the benefit of the sold land.

4.28 The remaining common law doctrines, intended easements and easements implied under the rule in Wheeldon v Burrows, serve the useful function of giving effect to the actual or presumed intention of the parties to a transaction. As we received no submissions that the rules caused actual hardship to purchasers of land burdened by the easements, we think they should be retained.

It should still be possible to acquire an implied easement under other common law rules.

EASEMENTS IMPLIED by STATUTE

Section 62 of the Property Law Act 1958 (Vic) [compare with s.68(1)A TLA(WA):  

4.29 At common law, it was customary to include in conveyances of land certain ‘general words’ to ensure that interests and rights enjoyed by the vendor passed to the purchaser, including all of the easements that benefited the land prior to the sale. In order to shorten the length of conveyances, legislation was enacted to deem the general words to be included in all conveyances. ‘Conveyance’ is widely defined, and includes an instrument of transfer. 

4.30 Section 62 of the Property Law Act 1958 (Vic) (Property Law Act) deems conveyances of land to include ‘all … privileges, easements, rights and advantages whatsoever, appertaining or reputed to appertain to the land, or any part thereof’.

4.31 This provision applies to transfers of land under the operation of the Transfer of Land Act 1958 (Vic) (Transfer of Land Act) as well as to transfers of land under the previous deeds-based system of title.

4.32 The effect of section 62 of the Property Law Act is that any easements or covenants or other interests attached to the land pass with it, regardless of whether they are specified in the instrument of transfer. In addition, section 62 may also operate to convert revocable licences into easements.

4.33 Section 62 may operate in a way the parties did not intend, particularly where a licence is converted into an easement. A number of other jurisdictions have identical provisions, all derived from section 62 of the Law of Property Act 1925 (UK). Law reform bodies both in Australia and overseas have recommended amending the provision to exclude the possibility that it might operate to create new easements and other property rights. We proposed a similar amendment in our consultation paper on the review of the Property Law Act. We received no submissions against the idea and recommended in the final report of that review that section 62 be amended accordingly. 

Dated 2^nd September, 2019

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[Applicant in person or the legal practitioner

representing the applicant]

To: The Respondent
[respondent’s address for service] n/a as this is an ex-parte application.

TAKE NOTICE:   Before taking any step in the proceedings you must, within 14 DAYS after service of this application, enter an appearance in the office of the Registry in which the application is filed, and serve a copy on the applicant.

The Applicant is represented by:

[Firm name, address for service, telephone and facsimile numbers and email address]

or

The Applicant’s address for service is:

This Application for Leave to Appeal is filed by the Applicant in Person: Paul Chung Kiong Chin and whose address for service is at No. 387 Alexander Drive, DIANELLA WA 6059: Phone and Fax; 089275 7440; Mobile: 0401 771 984; Email: ameliahupa@gmail.com