Westfield Management Ltd v Perpetual Trustee Company Ltd

Facts

Westfield Management Ltd held an easement over land in Sydney's CBD that permitted the grantee to pass and repass over the burdened land 'for all purposes connected with the use and enjoyment' of the dominant tenement, a shopping centre. Westfield sought to rely on the easement to access a proposed new development on adjoining land that had been consolidated with the original dominant tenement. The question was whether the easement could be used in connection with the enlarged development, not merely the original shopping centre.

Issues

1. Whether the terms of a Torrens-system easement may be construed by reference to extrinsic evidence of the parties' intention at the time of grant. 2. Whether use of the easement in connection with land beyond the original dominant tenement constituted excessive user.

Holding

The High Court held that the easement could not be used in connection with the enlarged development. The terms of a Torrens-system easement must be construed by reference to the registered instrument alone, without resort to extrinsic evidence of subjective intention.

Ratio decidendi

The construction of an easement created under the Torrens system is governed exclusively by the language of the registered instrument; extrinsic evidence of the parties' common intention at the time of grant is inadmissible, because the register is intended to be a complete and conclusive record of dealings in land upon which all persons are entitled to rely.

Obiter dicta

The Court noted that the indefeasibility provisions of Torrens legislation reinforce the primacy of the registered instrument and that principles of contractual construction permitting recourse to surrounding circumstances have no application to the construction of Torrens title documents, at least to the extent that such circumstances are not apparent from the register itself.

Significance

Westfield Management is the leading Australian authority for the proposition that Torrens-system easements must be construed on their face without extrinsic evidence, firmly anchoring easement interpretation to the principle of indefeasibility and the conclusiveness of the register.

Key authorities

• Mercantile Mutual Life Insurance Co Ltd v Gosper Mercantile Mutual Life Insurance Co Ltd v Gosper (1991) 25 NSWLR 32considered
• Glenfield Park Investments Pty Ltd v Daintree Pty Ltd Glenfield Park Investments Pty Ltd v Daintree Pty Ltd (1982) 2 BPR 9571considered
• Perpetual Trustee Company Ltd v Westfield Management Ltd Perpetual Trustee Company Ltd v Westfield Management Ltd (2006) 12 BPR 23,793overruled
• Harris v Flower Harris v Flower (1904) 74 LJ Ch 127applied
• National Guaranteed Manure Co v Donald National Guaranteed Manure Co v Donald (1859) 4 H & N 8cited