In the High Court of Fiji at Suva

Civil Action No.HBC of 204 of 2004
Consolidated with Originating Summons No.HBC 96 of 2006

BETWEEN:

Gary Stevens
First Plaintiff

AND:

Helen Stephens
Second Plaintiff

AND:

Horseshoe Bay Investments Pty Ltd
Third Party

AND:

Aren Joseph Nunnink
First Defendant

AND:

Ki Maren (Fiji) Limited
Second Defendant

AND:

Registrar of Titles
Third Defendant

Appearances: Ms B. Malimalifor the plaintiff
Mr Devanesh Sharma for the first and second defendants
Mr A. Pratap for the third defendant

Dates of hearing: 22nd, 23rd and 24January,2013

JUDGMENT

1.	The third plaintiff purchased Lot 7 on DP 6618 from the second defendant, in 1993. Subsequently, in 2001, the first and second plaintiffs purchased shares in the third plaintiff (a company).The plaintiffs allege that Lot 7 is legally inaccessible, despite the easements registered on its certificate of title. The first defendant is a director and shareholder of the second defendant company. The defendants dispute the contention.

2.	The parties agreed that the following preliminary issue be determined under Or 33 r3:

the interpretation of the registered documents be adjudicated upon first as a preliminary issue to the main trial.

3.	By summons filed on 7 January,2013,the plaintiff filed summons for trial on the following preliminary issues:

i.	Does Lot 7 have appurtenant to it an easement over Lot 8 DP 6618?

ii.	Does Lot 7 have any right to an appurtenant easement of right of way over area "B", being part of Lot 6 DP 6618?

iii.	Does Lot 7 have any right to an appurtenant easement of right of way over "Balance CT 20728?"

iv.	Does Lot 7 have any right to an appurtenant easement of right way over the "linking easement" connecting Lot 8 DP 6618 to the public road?

4.	The determination 

4.1	The second defendant owned a land comprised of CT 20728 known as Vuniwailevu in Vanua Levu. The second defendant split CT 20728 into DP 6618 and DP 6084.DP 6618 and DP 6084 were then, further sub-divided. The sub-division of DP 6618 into 8 lots was approved and registered on 19th October,1989.

4.2	The third plaintiff bought Lot 7on DP 6618 from the second defendant. The plaintiffs contend that albeit the relevant CT 26169 has three easements registered on its memorials, namely, easement certificate nos 277726 and 282541 and access easement 423133,Lot 7 has no legal access to the Savusavu Trans insular highway.

4.3	Lot 7 is at the west end of DP 6618 and overlooks the spectacular Savusavu Bay.

4.4	DP 6618 depicts two right of ways: Easement B and Lot 8. 

4.5	Easement B is on Lot 6, which is adjacent to Lot 7.It is a triangular strip of land, which Ms Malimali, counsel for the plaintiff aptly termed a "pie", as its silhouette is like a sliver of a pie. The defendants state that easement B was created to access Lot 8 from Lot 7.

4.6	Lot 8 is a serpentine road that begins its journey alongside easement B on Lot 6,and twists its way eastwards across Lots 6,5,4,3 and 2 of DP 6618 and meets Lot 5 on DP 4765. The twist continues through Lots 5, 4 and 3 of DP 4765 and Lot 1 of DP 5755 and falls on to the Savusavu Trans insular highway.

4.7	I have illustrated in the following sketch(not drawn to scale) easement B and the winding path taken by Lot 8 of DP 6618:

4.8	It is not in dispute that the plaintiffs have had physical access to easement B and Lot 8. The claim is that they do not have "legal access".

4.9	The issues raised in the summons filed by the plaintiffs are whether:

(i)	Lot 7 has a right of way over easement B of DP 6618. 
(ii)	Lot 7 has a right of way over Lot 8 of DP 6618.
(iii)	Lot 7 has a right to an appurtenant easement of right of way over the "Balance CT 20728"?
(iv)	Lot 7 has a right to an easement of right way over the "linking easement" connecting Lot 8 of DP 6618 to the public road

4.10	The case for the plaintiffs as presented by Ms Malimali was that easement B, the "pie" and Lot 8 are not shown as servient tenements of Lot 7 in in schedule 1 of easement certificate no 277726. 

4.11	Mr Pratap, counsel for the third defendant submitted that albeit, there is an anomaly in schedule 1 of easement certificate no 277726, in that it does not mention Lot 8 and easement B, the matter is laid to rest in the attached DP6618, which specifically provides that Lot 7 has an easement over these two right of ways. DP6618, he said, is a registered plan, which is valid and binding.

4.12	Mr Pratap, called the Deputy Registrar of Titles, Torika Gonecake Silicia(3 DW1). She produced the relevant registered documents.

4.13	In response to Ms Malimali, 3DW1 said that Lot 8 is not shown in easement certificate no 277726.

4.14	Mr Sharma, counsel for the first and second defendants, took the witness to the second schedule on page 2 of easement certificate no 277726 and the attached DP 6618.She said that Lot 8 is a road reserve. DP 6618 expressly provides in its "MEMORANDUM OF ACCESS EASEMENT" that Lot 7 as dominant tenement, has a servient tenement over "LOT 8 DP 6618 AND LOTS 1,3,4 AND 5 OF DP 4765-CT 20165".

4.15	I turn to easement certificate no. 277726. The First Schedule provides that Lot 7 as dominant tenement has a right of way, servient tenement over Lot nos 2,3,4,5,6 and "Balance C.T.20728".

4.16	The second schedule is titled "CONDITIONS OF THE GRANT OF EASEMENTS.." and grants right of way over the "servient tenement shown coloured green and purple on the said Deposited Plan".

4.17	In my judgment, "Easement B" and Lot 8 are clearly delineated and distinctively coloured in DP 6618 attached to easement certificate no 277726.

4.18	I would reproduce the following extracts of the cross-examination of 3 DW1 by Mr Sharma:

Q. ..Easement on Memorandum of Access is B?
A. Lot 6
Q. Who is the servient tenement for Easement B?
A. Lot 6
Q. Who is the dominant tenement for Easement B?
A. Lot 7
Q. Easement (road Access) is on Lot 6?
A. Yes

Q. ... someone on Lot 7 need to access Easement B?
A Yes...
Q 39.7 is length of easement for Lot 7 to get to Lot 8
A Yes 
Q. Is it fair to say Lot 7 has access over Lot 6 and Lot 
8?
A.	Yes
Q. The question that Lot 7 is landlocked put to you this 
morning,isthat correct now after showing Easement B? 
 A. Lot 7 does have access to the road
Q. You were shown selective pieces this morning. Does 
Lot 7 clearly have access over Lot 6 to Lot 8?
A.	Yes

4.19	3DW1 said that DP 6618 is a registered document. It is binding and enforceable. She further stated that any clarification could be sought by a simple procedure from the Registrar of Lands, in terms of the Land Transfer Act.3 DW1 admitted that her answer to Ms Malimali was based on a perusal of the first page of the easement certificate no 277726.

4.20	I need hardly re-echo Mr Sharma's elementary submission that a document has to be read in its entirety and not piecemeal or selectively.

4.21	Ms Malimali relied on a line of cases which included Ba Town Council v Becharbhai Holdings Ltd, (Civil Appeal no 112 of 1985) and Fongs Holding Ltd v Harifam Ltd,(1996) FJHC 71 in support of her proposition that a notation is not sufficient to create an easement. The suggested analogy does not apply. The cases dealt with instances where there were no easement certificates and enshrined the concept of equitable easement.

4.22	In response to Ms Malimali's argument that Lot 8 was not expressly mentioned in the easement certificate, Messrs Sharma and Pratap pertinently pointed out that easement certificate no 277726 was executed by the second defendant on 16th August,1989, while the Director of Town and Country Planning and Surveyor General had approved the survey on 19 October,1989. 

4.23	It follows that the road reserve could not be identified as Lot 8 in the easement certificate, as DP 6618 was approved subsequently. Accordingly, the road reserve was imprecisely referred to as "Balance C. T. 20728" in the easement certificate.

4.24	Lot 8 was issued certificate of title no29051 on 18th October,1994.I find that the trilogy of easements reviewed are registered in certificate of title No29051,as memorials.

4.25	Ms Malimali, in her written submissions, relies on the opening words of section 159 (3) of the Land Transfer Act provides that an easement certificate "shall be lodged for registration at the same time as the map or plan is deposited".

4.26	The spacious language of that section, in its entirety reads:

The certificate of easement shall be lodged for registration with the Registrar at the same time as the map or plan is deposited, or at such other time as the Registrar shall, in his absolute discretion, allow, and the Registrar shall enter a memorial of the certificate of easement on the folium of the register constituted by the instrument of title.(emphasis added)

4.27	A further argument of Ms Malimali runs that the words "Easement B" was simply drawn in after the red line in March,2004 by the Surveyor General .

4.28	On 19 March,2004, the Surveyer General, under the heading "Notes and Purposes of Lots" made the following endorsements on DP 6618, viz: all pegs placed are iron pipes, Lots 1-7 are holiday farmlets and lot 8 is a road reserve.

4.29	In my judgment, that argument is unfounded. The attempt to impute impropriety to the Surveyor General, who is not a party to these proceedings, is most unfair and unwarranted.

4.30	Finally, Ms Malimali argued that there was an anomaly between easement certificate 277726 and DP 6618 in that the easement certificate lists the "Balance C. T. 20728" as the servient tenement, while in DP 6618, the "Balance C. T. 20728"is the dominant tenement.

4.31	In my judgment, easement certificate 277726 and the attached DP 6618 read together clearly dispel any confusion, in that regard.

4.32	The next easement certificate 282541 registered on CT 26169 gives Lot 7 a servient tenement over Lots 1, 3 ,4 and 5 of DP 4765 of CT 20165.

4.33	That takes me to access certificate no 423133. This provides the final access from Lot 5 of DP 4765 over Lots 4 and 3 of DP 4765 and Lot 1 of DP 5755 to the Savusavu Trans insular highway

4.34	Mr Sharma drew my attention to a memorandum of agreement in manuscript attached to this certificate between the grantor (G.Willis) and the grantee, the second defendant. This document expressly provides in clause 4 under the tile "Exchange of easements" that "Lot 8 DP6618 (is) for benefit of Lot 7.."

4.35	In my judgment, the combined effect of the trilogy of easement certificates I have reviewed, clearly gives the third plaintiff access to the Savusavu Trans insular highway. 

4.36	That disposes of the contentions raised on easement certificate no 277726.

4.37	I now turn to the interpretation of DP 6804. DP 6804 is an entirely different sub-division that was originally part of CT 20728, which belonged to the second defendant.

4.38	The plaintiffs claim a right of easement over Lot 29 on DP 6804, on the basis that it abuts Lot 7 and is stated to be a "ROAD" in DP 6618.

4.39	It is not in dispute that Lot 7 has no legal access easement over Lot 29. Neither easement certificate 285923 nor the Memorandum of Access Easements noted on DP 6804 show any intended grant of access to Lot 7 over Lot 29. 

4.40	In support of this claim, Ms Malimali relies on the following passage from the judgment in Permanent Trustee Co of NSW Ltd v Campbell-Town Corporation,(1960) HCA 62 in support of the common law principle that "gave those who purchased and took transfers of lots by reference to the plan, and their successors in title, a right to use as a way of access any road shown on the plan on which their lots abutted".

4.41	In that case, there was evidence that the road was used by members of the public. Windeyer J at page 420 stated that:

At common law a highway was created when a competent landowner manifested an intention to dedicate land as a public road, and there was acceptance by the public of that proferred dedication.

4.42	In the present case, 3DW1 said that Lot 29 was not dedicated to the state. It was a road reserve. She said that the word "Road" in DP 6618 was an abbreviation of "Road Res 9" in DP 6804.

4.43	In my judgment, Lot 7 does not have a right to use Lot 29 on DP 6804.

4.44	Before I part with this judgment, I find it necessary to refute Ms Malimali's opening statement in her written submissions that the plaintiff's witness, Mr Chambers was not permitted to give evidence.

4.45	Upon the conclusion of the evidence of 3DW1, Ms Malimali moved to call Mr Ken Chambers, Lecturer in Resource Management Law at USP, to "clarify the evidence of the Registrar of Titles". She stated that she had given notice and report of his evidence to Mr Pratap.

4.46	Mr Sharma objected to this witness being called, as he had not been given notice nor copy of the report of the witness, in terms of the Civil Evidence Act and Practice directions. Mr Sharma objected to the selective notice given to Mr Pratap. He further submitted that he did not have the opportunity of verifying the credentials of the witness, peruse his report and call evidence in rebuttal, if necessary.

4.47	I upheld the objection and declined the application to call that witness.

5.	Orders

a)	Lot 7 of DP 6618 has a legal easement of a right of way over Easement B on Lot 6 and Lot 8 of DP 6618,as set out in easement certificate No. 277726.

b)	Lot 7 of DP 6618 has a legal easement of a right of way over Lots 1, 3, 4 and 5 of DP 4765,asprovided out in easement certificate No. 282541.

c)	Lot 7 of DP 6618 has a legal access easement over Lot 1 of DP 5755, in terms of access certificate No. 423133.

d)	Lot 7 of DP 6618 has legal access to the Savusavu Trans insular Highway.

e)	Lot 7 of DP 6618 has no legal right to an easement over Lot 29 of DP 6804 comprised in certificate of title No. 29050.

f)	The plaintiffs shall pay the defendants costs in a sum of $ 6000 summarily assessed within 21 days of this judgment.

26thSeptember, 2014
A.L.B.Brito-Mutunayagam
Judge