Les Denny Pty Ltd v Valmorbida

[2025] VSCA 319

Victorian Court of Appeal

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Interrogate

Catchwords

1. Real Property
2. › Easements
3. › Easement by prescription arising from long use
4. › Whether owner of servient tenement consented to use
5. › Whether use was 'as of right' or with permission
6. › Conflicting evidence of permission
7. › Appellate review of factual finding based on demeanour
1. Real Property
2. › Easements
3. › Easement by prescription arising from long use
4. › Tacking periods of use at common law
5. › Whether easement can arise based on 20 or more years of use despite change in ownership of servient tenement
6. › Acquiescence of successive owners
1. Real Property
2. › Easements
3. › Interaction between prescriptive easement and indefeasibility of title under Torrens system
4. › Whether emerging or inchoate easement is an 'encumbrance'
5. › Whether s 42 is an ambulatory provision
6. › When easement 'subsists'
7. › Transfer of Land Act 1958 (Vic), ss 3(1), 42
1. Statutory Interpretation
2. › Transfer of Land Act 1958 (Vic)
3. › Section 42(2)(d)
4. › Exception to indefeasibility for 'any easements howsoever acquired subsisting over or upon or affecting the land'
5. › Legislative history of s 42
6. › Whether exception accommodates prescriptive easements acquired by tacking

Quick Take

In Victoria, a prescriptive easement can arise from 20 or more years of open, as-of-right use of a servient tenement despite changes in ownership of that tenement during the period of use, and s 42(2)(d) of the Transfer of Land Act 1958 (Vic) accommodates such easements as an exception to indefeasibility of title, because s 42 is an ambulatory provision describing the registered proprietor's estate from time to time.