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CITE

Notable Unreported Decision
Appeal Determined (QCA)

Multiplex Bluewater Marina Village Pty Ltd v Harbour Tropics Pty Ltd[2017] QCA 202Morrison JA and Philippides JA and Flanagan J
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Multiplex Bluewater Marina Village Pty Ltd v Harbour Tropics Pty Ltd[2017] QCA 202

SUPREME COURT OF QUEENSLAND

CITATION:	Multiplex Bluewater Marina Village Pty Ltd & Anor v Harbour Tropics Pty Ltd [2017] QCA 202
PARTIES:	MULTIPLEX BLUEWATER MARINA VILLAGE PTY LTD ACN 115 034 083 (first appellant) MULTIPLEX BLUEWATER MARINA LOT PTY LTD ACN 115 034 074 (second appellant) v HARBOUR TROPICS PTY LTD ACN 165 378 736 (respondent)
FILE NO/S:	Appeal No 9653 of 2016 SC No 12894 of 2015
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane – [2016] QSC 99 (Mullins J)
DELIVERED ON:	12 September 2017
DELIVERED AT:	Brisbane
HEARING DATE:	16 March 2017
JUDGES:	Morrison and Philippides JJA and Flanagan J
ORDERS:	The appeal against the order of the primary judge of 23 August 2016 is allowed. The declaration made on 23 August 2016 is varied to the extent that the words “and that such use of any of the 64 carparks may be for a continuous period not exceeding 10 hours” are deleted. Unless the parties file submissions as to costs in accordance with Practice Direction 3 of 2013, paragraph 52(4), within 14 days of the publication of these reasons, the respondent is to pay the appellants’ costs.
CATCHWORDS:	REAL PROPERTY – EASEMENTS – PARTICULAR EASEMENTS AND RIGHTS – RIGHTS OF WAY – CONSTRUCTION – where the respondent owns a property adjacent to a large marina – where the appellants own the freehold land where the marina is located – where the respondent granted an easement to the appellants to use and enjoy facilities (car parks, showers, toilets and a laundry) on the respondent’s property – where the respondent sought to impose restrictions on the appellants’ use of the facilities, in particular the car parks – where the appellants sought relief in terms of ‘unlimited use’ of the car parks – where the learned primary judge held that the right of access was to facilitate the use of and access to vessels moored in the marina and that use of the car parks was for a limited time of 10 hours only – where the appellant submitted on appeal that on a proper construction of the easement the appellant is entitled to unlimited use of the car parks and that there was no basis for the learned primary judge’s selection of a 10 hour time limit – whether the learned trial judge was correct in her Honour’s construction of the easement – whether enjoyment of the facilities confers a right to unlimited use of the facilities Butler v Muddle [1996] ANZ ConvR 147; (1995) 6 BPR 97,532, considered Copeland v Greenhalf [1952] Ch 488, cited Grigsby v Melville [1972] 1 WLR 1355, cited Hare & Van Brugge (2013) 84 NSWLR 41; [2013] NSWCA 74, distinguished Hill v Tupper (1863) 159 ER 51; [1863] EngR 493, cited In re Ellenborough Park [1956] Ch 131, cited Kelly v The Queen (2004) 218 CLR 216; [2004] HCA 12, followed Kladis v Lowe [2016] NSWSC 1834, cited Moncrieff v Jamieson [2007] 1 WLR 2620; [2007] UKHL 42, cited Multiplex Bluewater Marina Village Pty Ltd & Anor v Harbour Tropics Pty Ltd [2016] QSC 99, related Multiplex Bluewater Marina Village Pty Ltd & Anor v Harbour Tropics Pty Ltd (No 2) [2016] QSC 192, related Red Hill Iron Ltd v API Management Pty Ltd [2012] WASC 323, followed Watson v Scott [2016] 2 Qd R 484; [2015] QCA 267, followed Weigall v Toman [2008] 1 Qd R 192; [2006] QSC 349, considered Westfield Management Ltd v Perpetual Trustee Co Ltd (2007) 233 CLR 528; [2007] HCA 45, applied
COUNSEL:	L F Kelly QC, with D de Jersey, for the appellants M A Jonsson QC for the respondent
SOLICITORS:	Clayton Utz for the appellants Cairns Beaches Law and Conveyancing for the respondent

MORRISON JA: Multiplex Bluewater Marina Lot Pty Ltd (Marina Lot) owns Lot 1860, which is freehold land comprising an area of sea and foreshore, on which the Trinity Beach Marina is located. The adjacent land on the mainland is Lot 10, owned by Harbour Tropics Pty Ltd (Harbour Tropics), where it operates a tavern.

Lot 10 contains 69 car parks adjacent to the tavern. Harbour Tropics granted easement No. 716452824 to Marina Lot, over much of Lot 10, encompassing the car parks, but not the tavern buildings. That easement is designated in the material as Easement B on Lot 10 and gave a right of access to enjoy “Marina Facilities” which were defined to include 64 car parks, showers, toilets and a laundry.^[1]
The appeal concerns the proper construction of easement No. 716452824, and in particular whether it gives Marina Lot unlimited use of the car parks, or whether Harbour Tropics can impose a time limit on their use. The learned primary judge held that the right of access was to facilitate the use of and access to the vessels moored at the marina, and the right to use the car parks was for a limited time. Her Honour held that Harbour Tropics could limit parking in the car parks to 10 hours of continuous use.

The proceedings below

The originating application before the learned primary judge^[2] was brought by Bluewater Marina Village Pty Ltd (Marina Village) and Marina Lot. It sought a declaration that on the proper construction of easement No. 716452824 and a contract between Harbour Tropics and Marina Village dated 24 October 2013:

“[Marina Lot] and Marina Berth Users … are entitled to the unlimited use of 64 car parks, a minimum of three showers, a minimum of three toilets and a laundry with provision for a minimum of two heavy duty washing machines and two clothes dryers (being the Marina Facilities as defined in the easement) on property owned by [Harbour Tropics] described as Lot 10 … for use by [Marina Lot] for the operation of a marina forming part of Lot 1860 ...”

The contract between Harbour Tropics and Marina Village comprised these elements: (i) Marina Village owned two lots which were cancelled in order to create Lots 10, 1860 and 1850; (ii) Marina Village sold (then proposed) Lot 10 to Harbour Tropics; (iii) Marina Lot became the owner of Lot 1860; (iv) by clause 12 Harbour Tropics was required to build the tavern, retail space, a marina manager’s office, marina facilities and car parks.
Clause 17 of the contract provided that Harbour Tropics “must provide a minimum of 64 bitumen sealed car parks, a minimum of 3 showers, a minimum of 3 toilets and a laundry with provision for a minimum of heavy duty 2 washing machines and 2 clothes dryers which are required for use by the owners, lessees, occupiers and users of the Marina”.
Harbour Tropics constructed the tavern, the marina manager’s office and marina facilities on Lot 10, adjacent to Lot 1860. Plan A attached to these reasons shows the location of Lot 10, Lot 1860, the tavern, car parks and marina facilities. Plan B shows the easement. The car park is on the western side of the tavern. The building which houses the marina manager’s office and the marina facilities is a building on the north side of Lot 10, joined to the tavern by a covered way.
The learned primary judge referred to the relationship of the parties and easements in this way:^[3]

“[Harbour Tropics] is the grantor under the easement in respect of the servient tenement which is described as Easement B on SP267830 in Lot 10 on SP264300. The dominant tenement is specified as Lot 1860 of SP264300. [Marina Lot] is the grantee under the easement. Easement B covers the car park area of Lot 10, the building containing the other Marina Facilities and a pathway that provides access to and from Lot 1860 from and to the car park and the other Marina Facilities and thereby to and from the Marina Berths. The area of easement B is 2,414m² which comprises more than half the total area of Lot 10 (which has an area of 4,464m²).”^[4]

The relief then claimed sought “unlimited use” of the car parks.
The learned primary judge identified the dispute in a way that can be adopted for the resolution of this appeal, as the relevant facts have not altered:^[5]

“[16] [Harbour Tropics] seeks to restrict the use of the car park by the Marina Berth Users who claim the right to park in the car park by virtue of the rights granted to them through [Marina Lot] under the easement. [Harbour Tropics] wishes to impose a “Car Park Management Plan” on all users with restrictions including a time limit for car parking (of four or five hours) to be enforced by arrangements for towing vehicles that are parked in excess of such time limit. [Marina Village and Marina Lot] contend that under the easement [Marina Lot] and Marina Berth Users are entitled to uninterrupted and unimpeded use of the car park with no time limit for car parking.

[17] It appears that some Marina Berth Users park vehicles in the car park and access their boats anchored in the Marina Berths before leaving the marina in the boats to go out on the water. Mr Sayers who is the director of [Harbour Tropics] deposed in his affidavit affirmed on 27 January 2016 that since 14 January 2016 a large number of vehicles had been parking in the tavern car park overnight and at times for consecutive days.

[18] [Harbour Tropics] concedes that the access easement would be “virtually useless” if [Marina Lot] or Marina Berth Users were not permitted to park vehicles in the car park to use and enjoy the Marina Facilities, but seeks to regulate the parking by restricting the time period that applies for parking and to make it clear that the parking of a car “permanently” or the parking of a vehicle with a trailer attached is not permitted. [Harbour Tropics] formulates the question to be decided as whether the limits [Harbour Tropics] proposes in its Car Park Management Plan materially fetter the right of access provided for under the easement. [Harbour Tropics] does not dispute the validity of the easement, but opposes the making of the declaration in the terms sought by [Marina Village and Marina Lot] on the grounds that the declaration does not reflect the true construction of the easement and seeks a declaration that is the direct negative of the declaration sought by [Marina Village and Marina Lot].”

The learned primary judge held that: (i) the right of access in clause 2 included the right of access to and from, and use of, the Marina Facilities; (ii) there was nothing in the easement itself that linked the access rights to use of the marina on Lot 1860 or a boat; (iii) however, a narrow approach, confining the rights to use of the Marina Facilities but not for using a boat away from the marina berths, was to be rejected; (iv) because there must be a connection between the exercise of rights conferred under clause 2 and the access to and from the Lot 1860, a point will be reached when the use of a boat away from the marina berth for an extended period means that the parking loses its connection with Lot 1860; (v) clauses 5 and 6 of the easement did not oust the rights of Harbour Tropics completely, and incorporated a requirement of reasonableness, applicable to both Marina Lot and Harbour Tropics; and (vi) as a consequence the car parking limits did not fetter the right of access under the easement.
The time limit that Harbour Tropics had proposed to enforce was five hours. The learned primary judge sought submissions on the appropriate time, and ultimately selected 10 hours:^[6]

“I have decided that 10 hours would be an appropriate time to designate as the yardstick that would reflect a length of time away from the marina berth that would have the effect of changing the nature of the use of the car park by the marina berth user from parking to storage. I intend the yardstick of 10 hours to apply to parking by the marina berth user in the car park for the purpose of accessing the marina berth in any instance, whether the boat is removed from the berth or not.”

The order ultimately made by the learned primary judge was in these terms:^[7]

“On a proper construction of registered Easement 716452824 (the easement) [Marina Lot] and Marina Berth Users (as that term is defined in the easement) are entitled to the use of 64 car parks on property owned by [Harbour Tropics] described as Lot 10 on SP 264300 … and that such use of any of the 64 carparks may be for a continuous period not exceeding 10 hours.”

The appeal

The relief sought in the Notice of Appeal is as follows:^[8]

“It be declared that on the proper construction of registered easement 716452824, [Marina Lot] is entitled to the unlimited use of 64 car parks, a minimum of three showers, a minimum of three toilets and a laundry with provision for a minimum of two heavy duty washing machines and two clothes dryers for use by [Marina Lot]^[9].”

It can be noted that Marina Lot no longer seeks to construe easement No. 716452824 by reference to the contract between Marina Village and Harbour Tropics. That notwithstanding, the relief sought is for the “unlimited use” of the car parks.
On the appeal Marina Lot contended that the proper construction of the easement is that the use of car parks and other Marina Facilities was unlimited in time.
The selection of a time limit of 10 hours was the subject of challenge on the appeal, separately from the construction issue. It was said that there was no basis for adopting that figure, which had not been proposed by either side.

Discussion

Discussion of the issues on the appeal is best conducted in the context of the nature of an easement, and the approach that is taken to the construction of an easement. As will become apparent the construction must focus of the easement itself, and construe the instrument as a whole.

General nature of an easement

In its simplest terms, an easement is a “right annexed to land to utilise other land of different ownership in a particular manner … or to prevent the owner of the other land from utilising his land in a particular manner”.^[10] That is, an easement is the right which the owner of one parcel of land has, by reason of such ownership, to use the land of another for a specific purpose, such use being distinct from the occupation and enjoyment of the land itself.
As defined in Re Ellenborough Park,^[11] an easement requires the existence of at least two parties. The party gaining the benefit of the easement is the dominant estate (or dominant tenement), while the party granting the benefit or suffering the burden is the servient estate (or servient tenement).
The easement cannot be for the benefit of a person. It must be for the benefit of another piece of land, the dominant tenement. If the benefit merely flows to a person, then it is a licence, not an easement. Ascertaining whether or not a right is attached to the dominant tenement or is merely a personal right requires construction of the instrument which created the right.
Creating an easement that is a “benefit to the land” means that there must be a connection between the easement and the enjoyment and occupation of the dominant tenement, that is, to the normal use and enjoyment to the estate of the dominant tenement. In contrast, if there is no connection between a servient and dominant tenement, there is no valid easement in most circumstances.
In other words the easement must confer a benefit upon, or “accommodate”, the dominant tenement. The benefit conferred must be connected to the land of the dominant tenement, conferring some direct beneficial impact on the land itself, and not just be a personal privilege or commercial advantage accruing to the current owner of the dominant tenement. The crucial question is whether the privilege provided by the easement has a “necessary connection” with the land; put another way, is the easement reasonably necessary for the better enjoyment of the dominant tenement as a parcel of land?
In Hill v Tupper^[12] it was held that an exclusive right to put pleasure boats on a canal was not an easement; the right did not “accommodate” the land, rather it only benefitted the business of the owner of the right.
How do you show accommodation? In Ellenborough Park Lord Evershed MR said:^[13]

“[I]t is not sufficient to show that the right increased the value of the property conveyed, unless it is also shown that it was connected with the normal enjoyment of that property. It appears to us that the question whether this connexion exists is primarily one of fact, and depends largely on the nature of the alleged dominant tenement and the nature of the right granted.”

General principles - easement restricting possessory rights

Senior Counsel for Harbour Tropics submitted that if the rights under easement No. 716452824 to use the car parks were unlimited in time, then the easement gave such extensive rights that it amounted to a deprivation of its proprietorship and possession of Lot 10.
An easement may prevent the owner of the other land from utilising their land in a particular manner, but an easement cannot be created if it will lead to a situation where the resultant action will end in possession of the land. It has been put that an easement cannot rob the owner of the servient tenement of the reasonable use of their land.^[14] Therefore, easement must not be so extensive so as to put the servient owner out of possession of his land. For example, in Grigsby v Melville^[15] an alleged right to store goods in a cellar was rejected because the right amounted to exclusive use of the small cellar space.
An example of an overreaching easement appears in Copeland v Greenhalf.^[16] That gave the right to park trucks on the servient tenement. Upjohn J said:

“I think that the right claimed goes wholly outside any normal idea of an easement, that is, the right of the owner or the occupier of a dominant tenement over a servient tenement. This claim (to which no closely related authority has been referred to me) really amounts to a claim to a joint user of the land by the defendant. Practically, the defendant is claiming the whole beneficial user of the strip of land on the south-east side of the tract there; he can leave as many or as few lorries there as he likes for as long as he likes; he may enter on it by himself, his servants and agents to do repair work thereon. In my judgment, that is not a claim which can be established as an easement. It is virtually a claim to possession of the servient tenement, if necessary to the exclusion of the owner; or, at any rate, to a joint user, and no authority has been cited to me which would justify the conclusion that a right of this wide and undefined nature can be the proper subject-matter of an easement.”

However, authority has moved to the point where a distinction is drawn between a right that confers sole use and occupation, and one which confers possession in law: Moncrieff v Jamieson.^[17] That was a case where the dominant tenement was a piece of land next to the sea, onto which it was not possible to drive vehicles. The adjacent servient tenement gave a right of access for both pedestrian and vehicular traffic, from a public road, over that land to the dominant tenement. The strip of land over which the right was given was wide enough, where it adjoined the dominant tenement, for vehicles to turn and park. That occurred for some time until the right to park cars was challenged.
The court held that just because the servient proprietor was excluded from part of his property was not necessarily inimical to the existence of an easement. As Lord Scott and Lord Neuberger put it, “a right can be an easement notwithstanding that the dominant owner effectively enjoys exclusive occupation, on the basis that the essential requirement is that the servient owner retains possession and control”.^[18]
That approach has been adopted in Australia.^[19] It reflects what was decided in Weigall v Toman.^[20] There an easement granted rights over a small part of the servient tenement, for pedestrian access along the length of the piece of land (the handle of a battle-axe block) and use of a garage. The garage was demolished with the agreement of the grantee, but in its place it was agreed that the grantee would have exclusive use of a car parking space. Wilson J referred to what was said by Evershed MR in Ellenborough Park, and in particular that part of the discussion about the fourth characteristic of an easement, where Evershed MR said:^[21]

“… the cognate questions involved under this condition are: whether the rights purported to be given are expressed in terms of too wide and vague a character; whether, if and so far as effective, such rights would amount to rights of joint occupation or would substantially deprive the park owners of proprietorship or legal possession …”.

Wilson J then identified the factors relevant to a determination of whether the easement had the effect that the owner had been deprived of “the reasonable use of his land”, or, as put in another way,^[22] “involves a significant restriction on the possessory rights of the servient owner”:^[23]

“[13] However, “the application of this characteristic to the facts of various disputes has sometimes proved awkward for the courts”, and authorities in this area require careful analysis. The validity of an easement purporting to confer on the owner of the dominant tenement a right of an exclusive character to use the servient tenement is a matter of degree. If it robs the servient owner of “the reasonable use of his land”, it is invalid. A survey of decided cases reveals a number of factors which have been relevant to the determination of this issue, including —

proportionality between the servient tenement as a whole and that part of it over which the exclusive right is given;
the extent of the exclusivity claimed;
whether the easement arose by prescription or by express grant; and
practicalities.”

After examining those factors, and referring to authorities on proportionality,^[24] and the extent of exclusivity,^[25] and the fact that courts have taken into account the practicalities involved in parking cases,^[26] Wilson J said this:^[27]

“[25] In the present case the respondent’s predecessor in title was expressly and unambiguously granted an exclusive right to use a garage which occupied only a small part of the servient tenement. That right was counterpoised against an exclusive right in the applicant’s predecessor in title to use the smaller garage (which was also on the servient tenement). At the time of the grant, it was physically impossible for motor vehicles to proceed along the servient tenement beyond the garages because of the steep, scrubby nature of the pathway along it, and the easement with its reciprocal exclusive rights afforded the grantor and the grantee places to park their vehicles and pedestrian access to their respective dwellings. I conclude, therefore, that the grantee’s exclusive right to use the larger garage did not rob the grantor of the reasonable use of the servient tenement as a whole.”

General principles - construction of an easement

The correct approach to the construction of an easement involves a confined examination of evidence to the instrument itself, with little scope for the use of extrinsic evidence. As was said in Westfield Management Ltd v Perpetual Trustee Co Ltd:^[28]

“[39] …The third party who inspects the Register cannot be expected, consistently with the scheme of the Torrens system, to look further for extrinsic material which might establish facts or circumstances existing at the time of the creation of the registered dealing and placing the third party (or any court later seized of a dispute) in the situation of the grantee.

…

[43] Subsequent changes in circumstances may found an application under s 89 of the Conveyancing Act for modification or extinguishment. The conduct of the immediate parties to a dispute may found a personal equity of the kind considered in Mayer v Coe and accepted in Breskvar v Wall, and also may bear upon a claim for injunctive relief, as Kearney J indicated in Andriopoulos v Marshall. But this was not what was involved in the significance attached by the primary judge to the evidence of what may or may not have been in the contemplation of Jamino and Mastwood, or their affiliates and advisors, at or before the grant of the Easement in 1988. These matters were used to guide, if not control, the construction of what appeared on the Register.

[44] It may be accepted, in the absence of contrary argument, that evidence is admissible to make sense of that which the Register identifies by the terms or expressions found therein. An example would be the surveying terms and abbreviations which appear on the plan found in this case on the DP.

[45] But none of the foregoing supports the admission in this case of evidence to establish the intention or contemplation of the parties to the grant of the Easement.”

Thus, as has been held by this Court, an instrument registered under the Torrens system must be construed without reference to material extrinsic to the instrument and which might have established the intention or contemplation of the parties to it.^[29]
In Red Hill Iron Ltd v API Management Pty Ltd^[30] Beech J referred to the proposition that definition clauses do not have operative effect:

“[127] As mentioned earlier in section 2, both the Farm-in Agreement and Joint Venture Agreement make extensive use of defined terms. Definitions do not have substantive effect. They are not to be construed in isolation from the operative provision(s) in which a defined term is used. Rather, the operative provision is to be read by inserting the definition into the provision: Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216 [84], [103]; Epic Energy (Pilbara Pipeline) Pty Ltd v Commissioner of State Revenue [2011] WASCA 228 [62], [150], [218]. Those cases dealt with statutory interpretation; the same principle applies in interpreting contracts: Vincent Nominees Pty Ltd v Western Australian Planning Commission [25].”

In Watson v Scott^[31] this Court referred to Red Hill and set out the established principles that apply when construing clauses affected by definition clauses:

“[50] The important part of that passage is the rule of construction that “the operative provision is to be read by inserting the definition into the provision”. That was referred to by McHugh J in Kelly v The Queen:

“However, a legislative definition is not or, at all events, should not be framed as a substantive enactment. In Gibb v Federal Commissioner of Taxation, Barwick CJ, McTiernan and Taylor JJ stated:

The function of a definition clause in a statute is merely to indicate that when particular words or expressions the subject of definition, are found in the substantive part of the statute under consideration, they are to be understood in the defined sense – or are to be taken to include certain things which, but for the definition, they would not include. ... [Definition] clauses are ... no more than an aid to the construction of the statute and do not operate in any other way.

(emphasis added).”

...

“As I earlier pointed out, the function of a definition is not to enact substantive law. It is to provide aid in construing the statute. Nothing is more likely to defeat the intention of the legislature than to give a definition a narrow, literal meaning and then use that meaning to negate the evident policy or purpose of a substantive enactment. There is, of course, always a question whether the definition is expressly or impliedly excluded. But once it is clear that the definition applies, the better – I think the only proper – course is to read the words of the definition into the substantive enactment and then construe the substantive enactment – in its extended or confined sense – in its context and bearing in mind its purpose and the mischief that it was designed to overcome. To construe the definition before its text has been inserted into the fabric of the substantive enactment invites error as to the meaning of the substantive enactment.”

[51] McHugh J was referring to statutory construction but the same principles have been applied to construction of contracts.”

Thus this Court adopted the principle in Kelly v The Queen^[32] that the proper course of statutory construction is to read the words of a definition into the substantive enactment and then construe the substantive enactment. Further, a well-established line of authority was relied upon for the extension of that principle to private documents.^[33] There is no reason why that approach should not be taken to the construction of an easement.

The present case

The easement in question is that which was registered under No. 716452824.^[34]
The terms of easement No. 716452824 reveal a number of things:

the grantor is Harbour Tropics;
the grantee is Marina Lot;
the dominant tenement is Lot 1860;
the servient tenement is Lot 10 on SP267830; and
the purpose for which the easement is granted is “access”.

One can note immediately that the servient tenement is Lot 10, which means that Lot 10 must have a connection with Lot 1860; it must “accommodate” Lot 1860.

Construction of easement No. 716452824

Clause 2 is the operative clause in easement No. 716452824 that grants the easement rights:

“An Easement for the Grantee and Marina Berth Users (in common with the Grantor and all other persons having the like right) including full and free right liberty and license from time to time and at all times hereafter to enter upon and to pass along the Servient Tenement, with or without vehicles, for all purposes connected with the use and enjoyment of the Marina Facilities to the extent that the Grantee and the Marina Berth Users will have free and uninterrupted and unimpeded right of access and use of the Marina Facilities at all times.”

For ease of understanding and to facilitate the proper construction of clause 2 it can be broken into its constituent parts. It grants:

an easement for access, over Lot 10 in favour of Lot 1860, for
Marina Lot and Marina Berth Users, in common with Harbour Tropics and all other persons having the like right
(c)
including full and free right liberty and license from time to time and at all times hereafter
(d)
to enter upon and to pass along Lot 10 … for all purposes connected with the use and enjoyment of the Marina Facilities
(e)
to the extent that Marina Lot and the Marina Berth Users will have:
1. free and uninterrupted and unimpeded right of access; and
2. use of the Marina Facilities at all times.

Clause 1 provides that Harbour Tropics grants rights “to [Marina Lot] on an exclusive basis:”. The semicolon at the end of that phrase signifies that the subject matter of the following clauses, where applicable to an easement, are what is granted to Marina Lot “on an exclusive basis”. But that does not mean that what is grated is exclusive as against Harbour Tropics. It means that those easement rights will not be granted by Harbour Tropics to anyone else.
The term “Marina Berth Users” is defined to mean “the Grantee’s agents, employees, contractors, licensees, invitees, lessees, occupants and any person who uses or visits or may at any time be on the Dominant Tenement (with or without invitation)”: clause 11.1. That is a potentially wide class of persons, demonstrated by delineating each category:

Marina Lot;
Marina Lot’s agents;
Marina Lot’s employees;
Marina Lot’s contractors;
Marina Lot’s licensees;
Marina Lot’s invitees;
Marina Lot’s lessees;
Marina Lot’s occupants;
any person who uses Lot 1860, with or without invitation;
any person who visits Lot 1860, with or without invitation; and
any person who may at any time be on Lot 1860, with or without invitation.

The term “Marina Facilities” is defined as meaning “the marina facilities, including 64 car parks, a minimum of 3 showers, a minimum of 3 toilets and a laundry with provision for a minimum of heavy duty 2 washing machines and 2 clothes dryers located on the Servient Tenement”: clause 11.1.
The phrase “marina facilities” is wider than the items that are said to be included in it. Those items all follow the comma which is inserted after “marina facilities”. The phrase “located on the Servient Tenement” does not qualify “marina facilities”, but does qualify all the items that precede it, so that the enumerated items are identified as those “Marina Facilities” that are on Lot 10. Thus the “marina facilities” would comprehend the marina itself and the marina berths which are separately defined. The learned primary judge referred to the access being to the “Marina Facilities which are all located on the servient tenement”.^[35] If, by that, her Honour meant that everything defined by the term “Marina Facilities” was on Lot 10, that was an error.
Reference to the registered plan of the easement (called easement B)^[36] and Exhibit 1^[37] reveals that the enumerated items in the definition of “Marina Facilities” are on Lot 10.
The right of access has a temporal element, defined in clause 2 as relevantly being: from time to time and at all times. On the face of those words the right of access is to be at any time at all.
The right is relevantly defined as being “to enter upon and to pass along” Lot 10. On their face those words do not comprehend remaining on Lot 10 by parking there.
However, that right is qualified in two ways by the words which follow in clause 2.
First, the only entry upon Lot 10 and passing along Lot 10 that is permitted is entry and passing along “for all purposes connected with the use and enjoyment of the Marina Facilities”. That means that if the purpose of entry onto Lot 10, or passing along Lot 10, is not connected with the use and enjoyment of the Marina facilities, then there is no right to enter or pass along.
However, the term Marina Facilities is defined as including various things, one of which is the car parks. There is nothing to suggest that enjoyment and use of all Marina Facilities had to be within the purpose. That the words in clause 2 say that the entry and passing along can be “with or without vehicles” points to a construction that comprehends enjoyment of one or more of the Marina Facilities other than car parks is enough. Equally, entry for the purpose of using and enjoying the car parks alone would qualify as a purpose that enlivened the right to entry and passing along Lot 10.
Therefore, one purpose that gives a right of access (that is, a purpose connected with the car parks) is the sole purpose of parking, without reference to anything else. In other words, of the face of the clause there is no need for the “purpose” of access to be anything connected with the marina berths or boats, or anything connected with Lot 1860 at all, but merely the use of the car parks themselves. That conclusion is one for which Marina Lot evidently contends: “A Marina Berth User who uses the car park to use other Marina Facilities uses the rights conferred by the easement, regardless of whether they access their or someone else’s vessel in the Marina”.^[38]
On that basis any of the categories of person identified in paragraph [45] above could exercise the right of access just to use the car park even though there was no purpose to use the marina, marina berths, boats, or anything but the car park itself.
The breadth of the right of access, if Marina Lot’s contentions are accepted, is shown by reading clause 2 with the definitions inserted, as required by Kelly. Clause 2 then provides for unlimited use of the car parks by each of Marina Lot and Marina Lot’s agents, employees, contractors, licensees, invitees, lessees, occupants and any person who uses or visits or may at any time be on Lot 1860 (with or without invitation). The inclusion of “any person who … may at any time be on [Lot 1860] … without invitation” means that even trespassers on Lot 1860 enjoy unlimited rights, as against Harbour Tropics, to use the car parks.
Secondly, clause 2 defines the extent to which the grantee can enter upon and pass along Lot 10. It is “to the extent that [Marina Lot] and the Marina Berth Users will have”:

“free and uninterrupted and unimpeded right of access”; and
“use of the Marina Facilities at all times”.

In my view the phrase “free and uninterrupted and unimpeded” qualifies the word “access” and not the phrase which follows, i.e. “and use of the Marina Facilities at all times”. There are several reasons for that conclusion. First, the natural reading of that part of clause 2 is that it is the entry upon Lot 10 and the passing along Lot 10 that is to be free, uninterrupted and unimpeded. That is because it is that entry and passing along that provides the right of access to Lot 10. Secondly, the use of the car parks was always to be shared with users of Harbour Tropics’ tavern. Therefore the practicality of the arrangement is that tavern users may well prevent use of the car parks, because they are parked there while they use the tavern, but they could not prevent entry upon and passing along Lot 10. Therefore use of the car parks by Marina Lot and Marina Berth Users was never going to be uninterrupted or unimpeded. Thirdly, the easement is for access, defined by reference to entry upon and passing along Lot 10. Entry upon and passing along Lot 10 is not the same as remaining upon Lot 10, which would be necessary for use of the Marina Facilities.
One can pause to note the contention advanced by Senior Counsel for Marina Lot, namely that the right of access is an “uninterrupted and unimpeded” right “at all times”, which grants access and use of 64 car parks continuously, all day and every day, and for an indefinite period. Actual use of that kind by those entitled to exercise the right of access (Marina Lot and Marina Berth Users) would exclude the owner of Lot 10 from use of any of those car parks for so long as that continued. In that respect one would then have to consider whether the easement infringes the principles in paragraphs [27] to [33] above. I shall return to that consideration shortly.
The final part of clause 2 is the second aspect of the definition of the extent of the entry upon and passing along Lot 10. That is, “to the extent that [Marina Lot] and Marina Berth Users will have … use of the Marina Facilities at all times”. The first thing to note is that this phrase deals with use of facilities, not access to Lot 10. The second is that the words say “at all times” but they do not say “for all time” or “continuously”, or anything like that.
The phrase “at all times”, when used with reference to use of the Marina Facilities, must mean “at all times when they are available to be used”. Clause 8.1 expressly provides for the situation where the Marina Facilities might be damaged or destroyed in a way that makes them “wholly or partially unfit for use”. It cannot be that in that case, or where the Marina Facilities were unable to be used, for example because they had been damaged by vandals, fire, earthquake or storm, or flooded,^[39] that Marina Lot or the Marina Berth Users could complain that their right of use was being denied. Nor could there be such a complaint if the tavern users occupied the car parks for a function at the tavern, and in that way occupied all car parks for a time. The right to use the car parks was always to be shared with tavern customers.
In my view, to say that the facilities can be used “at all times” does not mean that the use can be all day, every day. There are at least three matters which show that cannot be so: (i) as will become apparent, there are provisions in the easement that permit Harbour Tropics to obstruct or prevent use of the Marina Facilities; (ii) as has been noted above, the use of the car parks was always to be shared with the tavern users; and (iii) as noted above, there may well be circumstances when the facilities are simply not in a condition to be used. Those matters qualify the use “at all times” by Marina Lot and Marina Berth Users.
What, then, is meant by use “at all times”? In my view, the phrase comprehends two temporal components. One is the time of day, and the other is the duration of use.
As to the first, there is little difficulty. There is no suggestion that Marina Lot and Marina Berth Users cannot have access to the car parks at any time of the day.
As to the second, I have set out above the reasons why the use is not unlimited in duration. That being so, it is right to imply a condition that the use be reasonable. Support for the implication of that condition is derived from the decision in Hare v Brugge.^[40] That concerned an easement permitting the dominant tenement “to go, pass and repass at all times and for all purposes with or without animals and vehicles or both to and from the said dominant tenement or any such part thereof”. The Court said:^[41]

“[24] I mention this last point because of a submission by counsel for the appellants to the effect that the right arising from the easement is a right to reasonable use and that, if there are two ways in which the right might be exercised, it is the duty of the persons entitled to the benefit of the easement to adopt the less intrusive way or the way less calculated to conflict with use by the owners of the servient tenement. It was suggested, for example, that the respondents might be confined to walking along the servient tenement (or travelling with such vehicles, if any, and such animals as could negotiate the terrain) or suspending a cable car able to travel above the inclinator; and that for them to use the inclinator would transgress the boundary of reasonable use.

[25] It may readily be accepted that a concept of reasonable use applies. But it applies to both parties. Each of them — the servient owner and the dominant owner — must exercise a degree of restraint in relation to an easement site. Neither may exercise his or her rights (the rights arising from the easement, in the case of the dominant owner, and the rights incidental to ownership of the burdened fee simple, in the case of the servient owner) in a way that interferes unreasonably with the enjoyment of the other’s rights. The necessary restraint does not, however, require one party to desist altogether from exercising some part of the totality of the party’s rights so as to leave the field entirely clear for the other party. For example, if a right of footway exists over land traversed by a shallow stream and the owner of the servient tenement (or a predecessor) has constructed a bridge, the person entitled to the benefit of the easement may walk across the bridge; and this is so even though it is physically possible to wade through the shallow water.”

Thus the Court considered that the concept of reasonable use applied to rights conferred by an easement in terms not dissimilar to the present case. A similar view has been reached in Butler v Muddle,^[42] where the right was in similar terms to that in Hare. Young J said, in relation to a submission as to excessive use:^[43]

“The fifth matter is the question of excessive use. I think this is really a red herring and there is not that much purpose to be gained in working out whether something is a general right of way or a particular right of way and once one has looked at the question of reasonableness this question deals with itself, as McLelland J said in Zenere at 9304:

“The dominant owner has only such rights as are to be found expressly or by necessary implications in the terms of the grant. The servient owner has all the rights of an owner except those which are inconsistent with the exercise by the dominant owner of the rights expressly or by necessary implication conferred on him by the terms of the grant.”

The prime thrust is that the land is still land belonging to the servient owner. The only rights that the dominant owner has are those expressly granted to him, which he has to use in a way that is necessary and thus in a reasonable way. It is not a situation that the dominant tenement can dictate by saying what he wants and compelling the servient owner to comply with his wishes.”

More recently, in Kladis v Lowe^[44] Beech-Jones J, when considering a right of carriageway in much the same terms as that in Hare and Butler, identified one relevant principle applicable to easements:^[45]

“[37] Fourth, as suggested by the observation of Kirby P in Hemmes, the exercise of the rights of the owner of the dominant tenement must not involve an unreasonable interference with the rights and enjoyment thereof of the owner of the servient tenement (Zenere v Leate (1980) BPR 97,029 at 6 per McLelland J)….”

One further matter may be added, drawn from the physical characteristics of the dominant tenement (Lot 1860) and the servient tenement (Lot 10).^[46] From the time the easement was granted Lot 1860 was, so far as the marina is concerned, accessible through Lot 10, and was the site of the marina business to be operated by Marina Lot. At the same time Lot 10 was adjacent to Lot 1860, and the site of a tavern business to be operated by Harbour Tropics. The car parks were located in a way to serve both Lots and therefore both businesses. The car parks were to be shared by both Lots.
Those matters support the construction that the use of car parks “at all times” by Marina Lot and Marina Berth Users was subject to a term of reasonableness.
However, the requirement of reasonableness applies to Harbour Tropics as well. For example, the use of the facilities cannot prevented by Harbour Tropics denying access on the basis that they are simply not available at certain times.

Provisions in the easement permitting obstruction

It is right to say that the rights of Marina Lot and Marine Berth Users under clause 2 are concurrent with the rights of Harbour Tropics, in the sense that clause 2 provides an easement for access “in common with” Harbour Tropics and others having the like right. However, the terms of the easement indicate that if Marina Lot’s rights are as it contends (that is, to continuous use at all times and for all time) those rights are more extensive than those of Harbour Tropics.
Whilst clause 2 grants the right of access “in common with [Harbour Tropics] and all other persons having a like right”, clause 5 imposes important qualifications on that. Clause 5 provides for restrictions on Harbour Tropics:

“The rights granted under this Easement require that the Grantor must not use the Marina Facilities and Servient Tenement in any manner that materially adversely affects the rights granted under this Easement. In addition, the Grantor must not obstruct the Servient Tenement in any manner that will prevent or unreasonably restrict the Grantee or Grantee’s Users’^[47] use of the Marina Facilities and Servient Tenement or prevent the Grantee from any rights or use under this Easement.”

Put simply, clause 5 imposes four restrictions on Harbour Tropics, and therefore on the use that Harbour Tropics (or any of its invitees) can make of the car parks:

it must not use the car parks and Lot 10 “in any manner that materially adversely affects the rights granted” under easement No. 716452824;

it must not obstruct Lot 10 in any manner that will prevent or unreasonably restrict Marina Lot’s, or its users’, use of the car parks and Lot 10;
it must not prevent Marina Lot’s rights under the easement; and
it must not prevent Marina Lot’s use under the easement.

Is clause 5 consistent with the notion that Marina Lot’s right of access is in common with that of Harbour Tropics? One can test that question in this way. Assume that Harbour Tropics and its invitees parked in every one of the 64 car parks, and did so continuously for days or weeks on end. In those circumstances Marina Lot and the Marina Berth Users would be prevented from enjoying the right to park cars in the 64 car parks. No doubt that would be said to be a circumstance that (i) materially adversely affected the right of access to park; (ii) obstructed Lot 10 in a way that unreasonably restricted Marina Lot’s or its users’ use of the car parks; and (iii) prevented Marina Lot’s enjoyment of its access rights under the easement.
However, clause 5 plainly comprehends that Harbour Tropics can impinge upon the rights of Marina Lot and Marina Berth Users to use the car parks, in three ways. First, that can occur provided the impact does not materially adversely affect that use. So, for example, at one extreme Harbour Tropics could not do what Marina Lot contends it can do, that is, occupy all the car parks all of the time, to the exclusion of anyone else. More central would be the obligations that Harbour Tropics has under clause 4.1, which oblige it to maintain and repair the Marina Facilities. To meet that obligation it may well be that Harbour Tropics would have to deny access to some or all car parks while they were repaired or maintained.
Secondly, Harbour Tropics can obstruct Lot 10 (which necessarily includes easement No. 716452824) provided that the obstruction is not an unreasonable restriction. One example of that might occur if there was a function at the tavern that resulted in all car parks being occupied for a time. That would undoubtedly restrict the use of the car parks by Marina Lot and Marine Berth Users for that time, but would not, given that their access is non-exclusive in any event, be an unreasonable restriction. Similarly, performance of the obligations under clause 4.1 would fall into the same category.
Thirdly, the word “prevent” in clause 5 must mean a complete prevention, not just temporarily. This follows from the fact that (i) the right of access under clause 2 is non-exclusive, (ii) clause 5 contemplates that a conflicting use can result in adversely affecting other use provided it is not material, and (iii) clause 5 also contemplates that there can be a restriction on use provided it is not unreasonable. In those circumstances one would not read “prevent” as meaning prevent to any degree, as that would conflict with what clause 5 permits otherwise. Therefore, Harbour Tropics could take actions that (at least temporarily) prevented the use of the car parks by Marina Lot and Marina Berth Users.
Clause 6.1 does not alter that construction. It provides:

“6.1 For the avoidance of doubt, the Grantee must not or permit at any time:

the obstruction of access to the Servient Tenement or entrances to the Servient Tenement unless reasonable and permitted by this Easement;

the obstruction of access to or use of the Marina Facilities or entrances to the Marina Facilities; or

any act which may cause a nuisance to the Grantee or the Grantee’s Invitees.”

For several reasons I am of the view that the reference to “the Grantee” in the first line must be an error and intended to refer to “the Grantor”. First the clause concerns obstruction and is for the avoidance of doubt. That seems to fit naturally with the subject matter of clause 5, where the obstruction referred to is that of the Grantor. Secondly, that construction fits more readily with clause 6.1(c) which refers to nuisance being caused “to the Grantee”. Thirdly, clause 6.1(a) deals with obstructing access to Lot 10 itself, or the entrances to Lot 10, and it is hard to see how the Grantee might do such a thing. The Grantee’s rights under clause 3 (to maintain and repair Lot 10) are only applicable to Lot 10 itself, not the access to Lot 10 or the entrances to Lot 10.
Clause 6.1(a) comprehends that Harbour Tropics can obstruct access to Lot 10, and the entrances to Lot 10, provided that it is reasonable and permitted by the easement. That is clearly a reference to clause 5, which permits Harbour Tropics to obstruct provided that it is not unreasonable. It would also comprehend Harbour Tropic’s rights under clause 4.1.
Focussing on that part of the Marina Facilities in issue, namely the car parks, clause 6.1(b) provides that Harbour Tropics must not obstruct “access to or use of” the car parks at any time, or permit that to happen. Harbour Tropics has two obligations: (i) it must not obstruct use of the car parks, and (ii) it must not permit obstruction of the use of the car parks.
However, the phrase “obstruction of access to or use of the Marina Facilities” cannot mean that any obstruction at all will suffice, no matter how temporary. That would negate the rights given under clause 4.1 and 5. Therefore the obvious way to read clause 6.1(b) is that the obstruction it refers to will infringe when it becomes unreasonable.
Harbour Tropics’ use of the car parks would amount to unreasonable obstruction if it used all of the car parks all of the time, thus denying any use to Marina Lot. No doubt there are grades of use in between, falling either side of what is reasonable. For present purposes it not necessary to examine just where the line is.
In my view, clauses 4.1, 5 and 6.1(b) plainly qualify the rights under clause 2, so that Harbour Tropics use of the car parks can adversely affect Marina Lot’s use of the car parks provided its own use is not unreasonable, and it does not permit unreasonable use.
Clause 10.2(a) also has an impact on the proper construction of the easement. It provides:

“10.2 Unless inconsistent with the subject matter or context:

the benefit of this Easement shall extend to and include the tenants, servants, agents, workmen, visitors, licensees and all other persons claiming through or under the Grantee as if each of those persons is the Grantee;”

Thus clause 10.2(a) has the effect that if the rights to use the car parks are as Marina Lot contends, Marina Lot’s tenants, servants, agents, workmen, visitors, licensees and all other persons claiming through or under Marina Lot, would all be able to have unlimited use of the car parks.
Returning to the definition of “Marina Berth Users”, one can see that some categories are replicated in clause 10.2(a). Thus, common to both are: agents, employees (servants), contractors (workmen), licensees, invitees (visitors), lessees (tenants) and occupants. They are all persons who come within the phrase “persons claiming through or under Marina Lot”. However, the definition of “Marina Berth User” is wider, extending to any person who uses or visits or may at any time be on Lot 10, without invitation.
More importantly, clause 10.2(a) operates to confer on those within it the same rights as Marina Lot, “as if each of those persons is [Marina Lot]”. Thus if Marina Lot’s rights to use the car parks are unlimited in any way, so are the rights of each of the persons within clause 10.2(a). If Marina Lot’s rights are relevantly qualified, those within clause 10.2(a) can have no better rights than Marina Lot.

Restriction of proprietary rights

Harbour Tropics conceded in a letter dated 16 March 2015^[48] that the access easement “would be virtually useless if [Marina Lot] or marina users were not permitted to park vehicles in the Car Park to effectively use and enjoy the … Marina Facilities”. That letter went on to assert that “permanent use of the Car Park … offends our client’s freehold rights to their land”.
Marina Lot’s response was that its use of 64 car parks was exclusive even of Harbour Tropics, but that did not offend against Harbour Tropic’s rights to the freehold.^[49]
By the time the application was heard below Marina Lot had altered its position, and it acknowledged that the rights were not exclusive because they were given in common with Harbour Tropics and all other persons having the like right.^[50] Further, Marina Lot’s submissions at first instance were made on the basis that Harbour Tropics was not prevented or excluded from using the car parks.^[51]
At first instance and before this Court Harbour Tropics contended that unlimited use of Lot 10 would “correspondingly diminish [Harbour Tropic’s] proprietary rights as registered owner of the servient tenement”.^[52] In my view, for the reasons which follow that contention should not be accepted.
Adopting the approach in Moncrieff, Weigall v Toman, and London & Blenheim Estates, one must determine if the use has the result that the servient owner has lost the reasonable use of its land, or involves a significant restriction on the possessory rights of the servient owner. That requires an assessment of the various factors that apply to that question. They include:

proportionality between the servient tenement as a whole and that part of it over which the exclusive right is given;
the extent of the exclusivity claimed; and
practicalities.

It is true that Lot 10 has a significant proportion of it area covered by the easement. The easement occupies 2,414m² which comprises more than half the 4,464m²total area of Lot 10. But the easement does not encroach on the tavern area, and is essentially restricted to the car park.
Further, the rights of access are not exclusive, so that Harbour Tropics and its customers can use the car park as well.
The practicalities are that apart from the use under the easement deterring those tavern customers who would wish to park there, which would only occur if the car parks are already occupied by Marina Lot or Marina Berth Users, the access does not impact on the right of Harbour Tropics to operate the tavern. The material suggests that there may be about 54 berth leases, which could potentially result in over 100 boats using the marina.^[53] Therefore there is the potential for all car parks to be taken up by marina users. But as a matter of practicality, how likely is that all car parks will be fully occupied at the one time? There is no suggestion in the affidavit material filed by Harbour Tropics that that has occurred. What has been the subject of complaint is that “a large number of vehicles have been parking … overnight and for days on end”, with the result that serious detriment to the tavern business has been caused.^[54] Without more that is an insufficient basis for a finding that Harbour Tropics has been denied the reasonable use of its land.
The other aspect of the practicalities of the situation is that there will probably be a number of tavern customers who do not seek to park while they use the tavern; especially those who intend to consume alcohol. That tends to soften the potential impact of competing use for car parks.
The situation here is similar to the position in Registrar-General of New South Wales v Jea Holdings (Aust) Pty Ltd.^[55] There rights were given over Lot 4 (vacant land) in favour of Lots 1-5, limiting the use of the surface area of Lot 4 to car parking for the use of owners of Lots 1-5. The rights were to the entire surface area of Lot 4, but reserved the right to the owner of Lot 4 to erect a building over Lot 4 provided it did not obstruct the parking. It was contended that the use deprived the owner of Lot 4 of the reasonable use of the land. The primary judge, in a passage approved by the Court of Appeal, described the position this way:^[56]

“Moreover, even limiting consideration to the use of the surface of the land, the plaintiff is not excluded from the land but remains able to use the land in conjunction with the second defendant. The plaintiff can do as it pleases with the surface of the land insofar as this does not disturb the rights of the second defendant to park on the land. The plaintiff, its agents and its invitees and so on can park on the land. It is true that the second defendant and its patrons could entirely fill the car park and leave the plaintiff without any car spaces. This would no doubt substantially detract from the plaintiff’s user of the land if this were to occur. But the practical reality is that both parties will use the car park simultaneously to a greater or lesser extent. An easement inherently involves tempering the servient owner’s user of the servient tenement so as to accommodate the dominant owner’s user. In a case such as this where the purported easement enables both the dominant and servient owners to share a resource, it is necessary to have regard to how the easement will be used as a matter of practice rather than focus unduly on the rights available to one party should the other exercise its rights to the maximum extent available if such an event is unlikely to occur. The plaintiff is able to use the car park and from a practical perspective the extent of its user is substantial in that there are 198 car spaces available for the patrons of both the plaintiff’s and the second defendant’s businesses to share. The plaintiff has far more than nominal proprietorship.”

Having considered various authorities including Moncrieff, Clos Farming Estates Pty Ltd v Easton,^[57] and Copeland, the Court said:^[58]

“[64] Notwithstanding the reference to Copeland v Greenhalf in Santow JA’s judgment, we do not consider that Clos Farming Estates stands only for the proposition that the owner of the servient tenement must have reasonable use of the servient tenement in its entirety. That is a relevant consideration and, in a given case may be decisive, but it is also relevant to consider the extent of the interference with the rights of ownership on that part of the servient tenement actually affected by the easement. That is apparent from the bolded portion of the summary from Bryson J’s judgment to which reference is made above. It is also consistent, in our view, with the approach taken in Harada v Registrar of Titles. It may be that if the interference with possession amounts to an effective interference with ownership rights, that may be sufficient to deny the validity of an easement. However, that is not this case. In our opinion, Windeyer AJ was correct in his conclusion, at [39] and [40], that Jea Holdings “enjoyed a very substantial use of the land“. It not only has the right to use the servient tenement for parking for itself, its servants, agents and invitees, it could be added for matters such as advertising on fencing and the like, and it has the valuable right to use both the airspace above and the subterranean land below. It also follows that, as his Honour also indicated and for the reasons he gave, the Covenant would be a valid easement if the correct approach was that taken in Moncrieff v Jamieson.”

The same may be said of Harbour Tropics.
I do not consider that it can be concluded that Harbour Tropics has lost the reasonable use of its land, or that the use under the easement involves a significant restriction on its possessory rights.

Management of the car parks

None of the matters referred to above suggest that the management of the car parks in terms of charging for usage would be inconsistent with the rights granted under clause 2. To charge for usage, for example on a time basis, would not impact on the free, unimpeded and uninterrupted right to enter upon and pass along Lot 10. Nor would it deny or prevent use of the car parks at all times. It would simply impose a charge.
However, management in the form of towing away after a certain time had passed would, in my view, be inconsistent with the rights granted under clause 2. That would deny or prevent use of the car parks in a way not sanctioned by the provisions of the easement.
However, beyond those comments I do not consider that more needs be said. The submissions and relief sought, both below and before this Court, did not descend into detail about a particular management plan, but rather the imposition of a 10 hour limit on parking.

Conclusion on the construction issue

The analysis above leads to the following conclusions as to the rights given to use the car parks.
Marina Lot and Marina Berth Users have the right to enter upon and pass along Lot 10 but only if the purpose of doing so is connected with the use and enjoyment of the Marina Facilities.
The right of Marina Lot and Marina Berth Users to enter upon and pass along Lot 10 is to be free, uninterrupted and unimpeded.
Whilst Marina Lot and Marina Berth Users have the right to use all car parks on Lot 10, that right is not unlimited, nor is it required to be free, uninterrupted and unimpeded.
Marina Lot’s right (and that of those who claim under Marina Lot, either because they are Marina Berth Users or because they come within clause 10.2) is qualified by the rights enjoyed by Harbour Tropics (and those who claim under it) to use the car parks as well. Those rights are held in common with Marina Lot and Marina Berth Users.
Further, Clauses 4.1 and 5 have the effect that Harbour Tropics’ can use the car parks in a way that will adversely affect use by Marina Lot and Marina Berth Users, provided that use is reasonable.
The right of Marina Lot and Marina Berth Users to use the car parks “at all times” is subject to a requirement that the use be reasonable. Similarly the use by Harbour Tropics of the car parks is subject to a requirement that the use be reasonable. At this stage no further conclusion as to what is reasonable on either score is possible, not least because the parties have not addressed that question in their submissions.
The learned primary judge ordered that the use by Marina Lot and Marine Berth Users “may be for a continuous period not exceeding 10 hours”. The reasons above explain why the appeal must be allowed and that order set aside. However, the relief sought in the notice of appeal is a declaration that the use is unlimited, which cannot be sustained.
In the circumstances the declaration that ought to be made is one without the qualification that the use is unlimited. Nonetheless the appellants have been substantially successful in having the declaration set aside and I would, subject to hearing the parties further, order that the respondent pay the costs of the appeal.

Disposition of the appeal

I would propose the following orders:
1. The appeal is allowed.
2. Order No. 1 made on 23 August 2016 is set aside and in lieu thereof it is declared that on a proper construction of registered Easement 716452824 (the easement) the Second Applicant and Marina Berth Users (as that term is defined in the easement) are entitled to the use of 64 car parks on property owned by the Respondent described as Lot 10 on SP 264300 in the County of Nares Parish of Smithfield being all the land contained in title Reference 50944071.
3. Unless the parties file submissions as to costs, limited to two pages, within 14 days of the publication of these reasons, the respondent is to pay the appellants’ costs.
PHILIPPIDES JA: I have had the advantage of reading the reasons of Morrison JA and gratefully adopt what his Honour has stated by way of background facts at [1] to [17]. I agree that the appeal should be allowed for the reasons that follow. However, as will be apparent from what follows, I do not consider that it is appropriate to make the orders sought by the appellant.
The appeal brought by the second appellant, Bluewater Marina Lot Pty Ltd (Marina Lot), concerns the construction of an Easement^[59] granted by Harbour Tropics Pty Ltd as trustee for the Bluewater Trustee (Harbour Tropics), as “Grantor” in favour of Marina Lot, as “Grantee”.^[60] The Easement granted over the Grantor’s land (Lot 10) included a right of access to and use of “Marina Facilities” on its land defined by the terms of the Easement to mean, inter alia, 64 car parks.
The only issue for determination is the proper construction of the Easement and in particular cl 2 thereof. That issue arises in the context of a dispute between Marina Lot and Harbour Tropics concerning the latter’s management plan by which it sought to impose a time limit on the use of the car parks on its land, to five hours at one time, and to impose a liability to payment of a penalty where that period is exceeded, with a reservation of the right to tow away any vehicle breaching the terms.
At first instance, Marina Lot sought a declaration in effect that, under the Easement, it and “Marina Berth Users”, a term defined in the easement, had unlimited use of the 64 carparks. Although the primary judge rejected the narrow construction of cl 2 put forward by Marina Lot (that the rights conferred by the Easement to use the Marina Facilities were confined to a situation where a vessel was being used while in the marina), her Honour determined that Harbour Tropics could restrict the duration of the use of the carparks. Her Honour determined that a reasonable limitation on the use of the carparks was one restricting use to 10 hours of continuous use.
The appellant’s complaint, put simply, is that the primary judge misconstrued the terms of the Easement as they appear in the instrument and erred in construing the Easement as restricting the time period for use of the carparks by the appellant and Marina Berth Users to 10 hours continuous use.
It is important to note that there was no issue at first instance or on appeal as to the validity of the Easement. It was not asserted that the Easement was invalid as an easement in gross. Moreover, there was no cross appeal in relation to the primary judge’s rejection of the “narrow” construction.

Terms of the Easement

It was common ground on the appeal that the proper approach to the construction of the Easement is to have regard to the instrument itself, and not to extrinsic evidence, to determine the intention of the parties.^[61] It is, therefore, appropriate to begin with the terms of the Easement as they appear in the instrument.
The “Grantor” granted the “Grantee” an Easement over the Servient Tenement^[62] (the burdened land) in favour of the Dominant Tenement (the benefitted land) for “the purpose” identified in item 7 as “access”. The parties covenanted with each other in the terms referred to in the Schedule.
Those terms include, by cl 1, that the Easement is granted on an exclusive basis. By cl 2, entitled “ACCESS”, the Easement identified in item 7 is described as follows:

Clause 2 refers to important terms defined in cl 1.11. “Marina Facilities” is defined to mean: “the marina facilities, including 64 car parks, a minimum of 3 showers, a minimum of 3 toilets and a laundry with provision for a minimum of heavy duty 2 washing machines and 2 clothes dryers located on the Servient Tenement”. “Marina Berth Users” is defined to mean: “the Grantee’s agents, employees, contractors, licensees, invitees, lessees, occupants and any person” who “uses” or “visits” or who “may at any time be on” the Dominant Tenement (with or without invitation). “Marina Berths”^[63] is defined to mean: “the marina berths located in the Dominant Tenement”.
By cl 5, entitled “RIGHTS OF GRANTEE”, the rights granted under the easement are expressed to be as follows:

“The rights granted under this Easement require that the Grantor must not use the Marina Facilities and Servient Tenement in any manner that materially adversely affects the rights granted under this Easement. In addition, the Grantor must not obstruct the Servient Tenement in any manner that will prevent or unreasonably restrict the Grantee or Grantee’s Users’ use of the Marina Facilities and Servient Tenement or prevent the Grantee from any right or use under this Easement.”

By cl 10.2, the benefit of the Easement extends to and includes all persons claiming access through or under the Grantee, including tenants, servants, agents, workmen, visitors and licensees.
Clause 4, entitled “OBLIGATION TO MAINTAIN”, imposes obligations on the Grantor to maintain and repair the Marina Facilities at its cost, to keep the entire Servient Tenement clean and tidy; and to maintain the Servient Tenement and the surface constructed on it in good repair and condition, keeping it mown where grassed, free from weeds and rubbish and unobstructed at all times (cl 4.1). Clause 4 also confers rights on the Grantee in respect of the Grantor’s obligation to maintain and repair. It provides:

“4.2 If, in the Grantee’s reasonable opinion, the Grantor has not complied with its obligations in this clause after 21 days’ written notice in writing to the Grantor, the Grantee may enter upon the Servient Tenement to carry out the works and activities at the Grantor’s cost which is recoverable by the Grantee as a liquidated debt.

4.3 If there is an emergency requiring immediate works, the Grantee may immediately enter upon the Servient Tenement to carry out the works, at the Grantee’s cost which is recoverable by the Grantee as a liquidated debt.”

In relation to cl 4.2, it is relevant to note that by cl 3 entitled “MAINTENANCE AND REPAIR”, a right is conferred on the Grantee as follows:

“The full right and liberty for the Grantee and persons authorised by the Grantee to enter on the Servient Tenement with or without workmen, materials and specialist services for the purposes of laying, installing, repairing, maintaining, renewing and relaying or removing any such pipes, drains, mains, channels, watercourses, sewers, wires, cables and all other conducting media the persons exercising such right causing as little damage and inconvenience as reasonably practicable in doing and making good immediately any damage caused to the Servient Tenement.”

Further (consistently with the obligation imposed on the Grantor by cl 4), the Grantor is required by cl 7 to take out and maintain certain specific policies of insurance:

“(a) insurance of the Servient Tenement against fire with extended cover endorsement for vandalism, malicious mischief, earthquake, flood and water damage in broad cover terms with repair and replacement terms and other risks determined by the Grantee acting reasonably;

public risk insurance, written on a comprehensive basis, against third party liability hazards, including exposure to personal injury, bodily injury and property damage to any person including the Grantee and Marina Berth Users on an occurrence basis including insurance for all contractual obligations for at least $10 million per occurrence; and

workers compensation insurance in respect of employees of the Grantor engaged in the maintenance, operation and repair of the Servient Tenement.”

By cl 8.1 entitled “Destruction”, it is stated:

“If, without any neglect or default by the Grantee, all, or part, of the Marina Facilities is damages or destroyed by any flood, storm, riot, war or act of God which renders the Marina Facilities wholly or partially unfit for use by the Grantee and/or the Marina Berth Users, the Grantor must promptly restore the Marina Facilities and rebuild the improvements on the Marina Facilities to their former specifications, layout and dimensions and with the same services as prior to the damage or destruction.”

Consideration of the terms of the Easement

The rights of access and use granted in favour of the Dominant Tenement under the Easement are limited in the manner provided for by the Easement.
By cl 2, the Easement granted to the Grantee and to Marina Berth Users (in common with the Grantor and all others having the like right) includes:

an entitlement to “full and free right liberty and licence from time to time and at all times to enter upon and pass along the Servient Tenement” (with or without vehicles) “for all purposes connected with the use and enjoyment of the Marina Facilities”;
“to the extent that the Grantee and Marina Berth Users have free and uninterrupted right of access and use of the Marina Berth Facilities at all times”.

A number of observations are to be made concerning cl 2.
Firstly, it is pertinent to note that, by virtue of the definition of the term Marina Berth Users, the Easement described in cl 2 applies not only in favour of the Grantee’s agents, employees, contractors, licensees, invitees, lessees, occupants, but also to a second category of person, that is, to any person who “uses” or “visits” or who “may at any time be on” the Dominant Tenement (with or without invitation). I note what Morrison JA has said at [56] concerning the regard to be given to the breadth of the term “Marina Berth Users” in construing the ambit of the Easement granted by cl 2. In my view, the words “without invitation” in the definition do not mean that the term extends to include trespassers; rather, those words are intended to extend the term to lawful, albeit uninvited, entrants. Consequently, cl 2 does not apply to grant a trespasser a right of access and use thereunder. Furthermore, in considering the breadth of the term Marina Berth Users, it is significant to bear in mind that the second category of person covered by the term is required to have a nexus with the Dominant Tenement, in that the person is required to be one who “uses”, “visits” or “may be on” the Dominant Tenement. The definition of Marina Berth Users therefore, although wide, is circumscribed.
Secondly, cl 2 describes the nature of the Easement granted to the Grantee and Marina Berth Users, but also to the Grantor and all others having the like right, in terms that are inclusive. The Easement expressly includes an entitlement to “full and free right liberty and licence from time to time and at all times to enter upon and pass along the Servient Tenement” which is stated to be “for all purposes connected with the use and enjoyment of the Marina Facilities.” The term “all purposes” is to be construed as encompassing all ends sought to be achieved by those utilising the Easement in accordance with its terms.^[64]
Thirdly, while that entitlement is conferred by cl 2 not only on the Grantee and Marina Berth Users but also on the Grantor and others with the like right, there is a qualification to the latter’s entitlement. The nature of the qualification on the entitlement conferred on the Grantor and others is reflected in the words “to the extent that the Grantee and Marina Berth Users have free and uninterrupted right of access and use of the Marina Berth Facilities at all times”. Accordingly, although the Grantor (and others having like right) have an entitlement to the use and enjoyment of the Marina Berth Facilities, that entitlement is qualified to the extent that the Grantee and Marina Berth Users are to have “free and uninterrupted right of access and use of the Marina Berth Facilities at all times”.
Fourthly, the limitation on the right conferred on the Grantor by cl 2 has a counterpart in cl 5, which specifies:

The rights Granted under the Easement require the Grantor not to use the Marina Facilities and Servient Tenement in any manner that materially adversely affects those rights;
Additionally, the Grantor must not obstruct the Servient Tenement in any manner that will:

prevent or unreasonably restrict the Grantee’s or the Grantee’s Users use of the Marina Facilities and Servient Tenement; or
prevent the Grantee from any right or use under the Easement.

Although entitled “Rights of Grantee”, cl 5 articulates the Grantee’s rights in terms of restrictions imposed on the Grantor, that is, on what the Grantor must not do:

firstly, in respect of its use of the Marina Facilities and Servient Tenement; and

secondly, in respect of its obstruction of the Servient Tenement.

As to the first matter, it is expressly stated that the “rights granted under the Easement” preclude the Grantor from using the Marina Facilities and Servient Tenement “in any manner that materially adversely affects the rights granted under the Easement”. Conversely, the Grantor is implicitly not precluded from using the Marina Facilities and Servient Tenement in a way that affects “the rights granted under the Easement”, provided that those rights are not materially adversely affected. The “rights granted under the Easement” which must not be materially adversely affected include the rights conferred under cl 2 on the Grantee and Marina Berth Users to “free and uninterrupted and unimpeded right of access and use of the Marina Facilities at all times”.
As to the second matter, what the Grantor must not do is obstruct the Servient Tenement in any manner that prevents or unreasonably restricts the Grantee’s or its Users’ use of the Marina Facilities and Servient Tenement, or prevents the Grantee from any right or use under the Easement. Obstruction of the Servient Tenement is permitted to the extent that it reasonably restricts the Grantee’s or the Grantee’s Users use of the Marina Facilities and Servient Tenement is envisaged by the instrument. Examples of obstruction of the Servient Tenement by the Grantor that could be said to be reasonable include obstruction in order to comply with its obligations to maintain the Marina Facilities under cl 4.1 or to restore the Marina Facilities pursuant to its obligation under cl 8.1.
The conduct implicitly permitted by the Grantor by cl 5 represents a corresponding limitation on the rights granted to the Grantee under the easement.
Clause 6 is entitled “Obstruction” and it is expressed for the avoidance of doubt about that topic. It was not the subject of argument but was the subject of a request for further submissions. I note what Morrison JA has written that the clause erroneously refers to the “Grantor” instead of the “Grantee” in referring to the party that “must not permit” the matters enumerated in (a), (b) and (c). That construction is disputed by the appellant in its further submissions and was not the subject of additional submissions by the respondent. In my view, the clause does not impact on the issue for determination on this appeal.

The conditions sought to be imposed by the respondent

The Easement does not expressly impose a limitation on the duration of use of the Marina Facilities in terms of a continuous period during which the carparks may be used. It certainly does not limit the use to no more than 10 hours. There is nothing to suggest the carparks should be shared equally. On the contrary, it is apparent from the terms of cls 2 and 5 that the Grantor’s use of the carparks yields to that of the Grantee and to the rights granted under the Easement.
Through the defined concepts of “Marina Facilities” and “Marina Berth Users”, and the terms of cls 2 and 5, the Easement by its terms delimits the ambit of the rights it confers. It is not necessary to resort to implied terms in the manner that occurred in Hare & Van Brugge.^[65]
The conditions of entry proposed by the appellant in relation to access and use of the carpark facilities vary in their impact. Clearly, the condition that users park within the boundaries of one bay does not affect use by the Grantee or the Marina Berth Users in a materially adverse way. On the other hand, a limitation that restricts the time period in which the carparks may be used pursuant to the rights confirmed under the easement to no more than 10 hours does materially adversely affect the rights granted under the Easement by cl 2 insofar as it concerns the Grantee or the Marina Berth Users whose rights include by cl 2 “free and uninterrupted right of access and use of the Marina Berth Facilities at all times”. Likewise, the towing away of vehicles and the imposition of a penalty on use beyond 10 continuous hours (which is not consistent with the terms of cl 4, which impose the costs of maintenance on the Grantee) infringes the rights conferred on the Grantee and Marina Berth Users under the Easement.

Conclusion

I would allow the appeal and set aside the orders of the primary judge on the basis of error by the primary judge in declaring that on the proper construction of the Easement the use of the 64 carparks may not exceed a continuous period of 10 hours.
I would refuse to make the declaration in the terms sought since the rights of the appellant and Marina Berth Users under the Easement are not stated to be “unlimited”. They are limited in the terms provided in the Easement as discussed above. It is sufficient that the declaration made on 23 August 2016 is varied to the extent that the words “and that such use of any of the 64 carparks may be for a continuous period not exceeding 10 hours” are deleted.

Orders

The orders I would make are:
1. The appeal against the order of the primary judge of 23 August 2016 is allowed.
2. The declaration made on 23 August 2016 is varied to the extent that the words “and that such use of any of the 64 carparks may be for a continuous period not exceeding 10 hours” are deleted.
3. Unless the parties file submissions as to costs in accordance with Practice Direction 3 of 2013, paragraph 52(4), within 14 days of the publication of these reasons, the respondent is to pay the appellant’s costs.
FLANAGAN J: I have had the advantage of reading the reasons of Morrison JA and those of Philippides JA. I agree with the reasons of Philippides JA and the proposed orders.

Multiplex Bluewater Marina Village Pty Ltd v Harbour Tropics Pty Ltd [2017] QCA 202

Footnotes

[1] Five of the total 69 car parks are excluded from the easement boundaries.

[2] AB 392.

[3] Multiplex Bluewater Marina Village Pty Ltd & Anor v Harbour Tropics Pty Ltd [2016] QSC 99, (Reasons) at [11].

[4] There is a factual error in the fourth sentence of that passage, in that the Marina Facilities other than the car parks are outside the boundaries of easement No. 716452824: see Exhibit 1, and the plans at AB 330, 336, 339 and 340. Ultimately nothing turns on this error as all the Marina Facilities are on Lot 10, the servient tenement.

[5] Reasons [16]-[18].

[6] Multiplex Bluewater Marina Village Pty Ltd & Anor v Harbour Tropics Pty Ltd (No 2) [2016] QSC 192, at page 4 (AB 410).

[7] AB 411.

[8] AB 414.

[9] The actual notice of appeal refers at this point to “the second applicant”, but this is obviously a reference to Marina Lot.

[10]Halsbury’s Laws of England (4th ed), Vol 14, p 4.

[11] [1956] Ch 131, at 140.

[12] (1863) 159 ER 51.

[13] In re Ellenborough Park at 173.

[14] Weigall v Toman [2008] 1 Qd R 192.

[15] [1972] 1 WLR 1355.

[16] [1952] Ch 488.

[17] [2007] UKHL 42; [2007] 1 WLR 2620.

[18] Lord Hope at [24], Lord Scott at [55] and [59]-[60], Lord Neuberger at [143].

[19] Registrar-General of New South Wales v Jea Holdings (Aust) Pty Ltd (2015) 88 NSWLR 351; [2015] NSWCA 74 at [61]-[64]; The Owners of East Freemantle Shopping Centre West Strata Plan 8618 v Acton Supermarkets Pty Ltd [2008] WASCA 1 at [61]-[66]; Draydon v Mikelsons [2009] QSC 420 at [6]; Towers v Stolyar [2017] NSWSC 526 at [28]-[34].

[20] [2006] QSC 349.

[21] [1956] 1 Ch 131 at 164.

[22] In London & Blenheim Estates Ltd v Ladbroke Retail Parks Ltd [1992] 1 WLR 1278, at 1288.

[23] Weigall at [13]; internal citations omitted.

[24] Including Copeland v Greenhalf [1952] Ch 488 and London & Blenheim Estates.

[25] Including Moncrieff.

[26] Weigall at [24], referring to Clos Farming Estates Pty Ltd v Easton [2001] NSWSC 525.

[27]Weigall at [25].

[28] [2007] HCA 45, (2007) 233 CLR 528, at [39] and [43]-[45]; internal citations omitted.

[29] Mount Cathay Pty Ltd v Lend Lease Funds Management Ltd [QCA] at [14] per McMurdo J, White and Gotterson JJA concurring. See also Boss v Hamilton Island Enterprises Limited [2010] 2 Qd R 115, at [66]-[67]; Hare v Van Brugge [2013] NSWCA 74, at [15]-[16]; Kitching v Phillips [2011] WASCA 19, at [61].

[30] [2012] WASC 323 at [127].

[31] [2016] 2 Qd R 484, [2015] QCA 267 at [50]-[51]; internal citations omitted; emphasis in original text.

[32] [2004] HCA 12; (2004) 218 CLR 216, at [84] and [103].

[33] Horsell International Pty Ltd v Divetwo Pty Ltd [2013] NSWCA 368 at [158] per McColl JA, Beazley P concurring; Segelov v Ernst and Young Services Pty Ltd [2015] NSWCA 156 at [88] per Gleeson JA, Meagher and Leeming JJA concurring; Vincent Nominees v Western Australian Planning Commission [2012] WASC 28 at [25] per Beech J.

[34] AB 291.

[35] Reasons [32] and [34].

[36] AB 340.

[37] Aerial photograph of the lots and Easement B.

[38] Appellant’s outline paragraph 29.

[39] These are all events contemplated by clauses 7.1(a) and 8.1 of the easement.

[40] [2013] NSWCA 74, (2013) 84 NSWLR 41, at [24]-[25].

[41]Hare at [24]-[25], per Barrett JA, Macfarlan JA and Tobias J concurring.

[42] [1996] ANZ ConvR 147, (1995) BPR 97.

[43] Butler at page 8, referring to Zenere v Leate (1980) 1 BPR 97,029.

[44] [2016] NSWSC 1834.

[45] Kladis at [37], referring to Hemmes Hermitage Pty Ltd v Abdurahman & Anor (1991) 22 NSWLR 343.

[46] Regard may be had to the physical characteristics in construing an easement: Hare at [15]-[18], Tempe Recreation (D.500215 and D.1000502) Reserve Trust v Sydney Water Corporation [2014] NSWCA 437, at [77].

[47] The phrase “Grantee’s Users” is not defined in easement No. 716452824. It probably means Marina Berth Users. Nothing turns on the precise definition.

[48] AB 87.

[49] Letter dated 1 April 2015, AB 90.

[50] Reasons [15]. The change in position was inevitable given that the Cairns Regional Council’s decision notice for the development was for a material change of use for the tavern as well as the tidal works to create the marina, and the requirement for car parks was for both: AB 149, 151, clause 3(a) on AB 154, and the site plan on AB 165. The Council informed Marina Lot that it was a shared car park: AB 383.

[51] Reasons [20].

[52] Respondent’s outline on appeal, paragraph 10.

[53] Plan at AB 281 and Exhibit 1.

[54] AB 380-381.

[55] [2015] NSWCA 74.

[56] Jea Holdings at [26].

[57] [2001] NSWSC 525.

[58] Jea Holdings at [64], per Bathurst CJ and Beazley P, Basten JA concurring.

[59] Easement No 716452824, being described as easement B in Lot 10 on SP 264300.

[60] The terms “Grantor” and “Grantee” are defined in cl 11.1 to include “the executors, administrators, successors and assigned of the Grantor” and “the executors, administrators, successors and permitted assigns of the Grantee and persons authorised by the Grantee”, respectively.

[61]Westfield Management Ltd v Perpetual Trustee Co Ltd (2007) 233 CLR 528 at 538-539. The background concerning the creation of the easement pursuant to a contractual obligation set out in the reasons of Morrison JA is irrelevant for such purposes, as his Honour notes.

[62] Servient Tenement is defined in cl 11.2.

[63] The term only appears in the definition clause.

[64] Westfield at [30].

[65] (2013) 84 NSWLR 41; [2013] NSWCA 74.

Editorial Notes

Published Case Name:
Multiplex Bluewater Marina Village Pty Ltd & Anor v Harbour Tropics Pty Ltd
Shortened Case Name:
Multiplex Bluewater Marina Village Pty Ltd v Harbour Tropics Pty Ltd
MNC:
[2017] QCA 202
Court:
QCA
Judge(s):
Morrison JA, Philippides JA, Flanagan J
Date:
12 Sep 2017
White Star Case:
Yes

Litigation History

Event	Citation or File	Date	Notes
Primary Judgment	[2016] QSC 99	10 May 2016	-
Notice of Appeal Filed	File Number: Appeal 9653/16	20 Sep 2016	-
Appeal Determined (QCA)	[2017] QCA 202	12 Sep 2017	-
Appeal Determined (QCA)	[2017] QCA 247	24 Oct 2017	Costs Judgment

Appeal Status

Appeal Determined (QCA)

Cases Cited List of Cases Cited by this judgment

Case Name	Full Citation	Frequency
Boss v Hamilton Island Enterprises Ltd	[2010] 2 Qd R 115; [2009] QCA 229	1 citation Jump To Cite 1 - [2010] 2 Qd R 115
Butler v Muddle	[1996] ANZ ConvR 147	2 citations Jump To Cite 1 - [1996] ANZ ConvR 147 Cite 2 - [1996] ANZ ConvR 147
Butler v Muddle	(1995) 6 BPR 97,532	1 citation Jump To Cite 1 - (1995) 6 BPR 97,532
Butler v Muddle	(1995) BPR 97,532	1 citation Jump To Cite 1 - (1995) BPR 97,532
Clos Farming Estates Pty Ltd v Easton	View on:JADE[2001] NSWSC 525	2 citations Jump To Cite 1 - [2001] NSWSC 525 Cite 2 - [2001] NSWSC 525
Copeland v Greenhalf	View on:ICLRUK[1952] Ch 488	3 citations Jump To Cite 1 - [1952] Ch 488 Cite 2 - [1952] Ch 488 Cite 3 - [1952] Ch 488
Draydon v Mikelsons	[2009] QSC 420	1 citation Jump To Cite 1 - [2009] QSC 420
Epic Energy (Pilbara Pipeline) Pty Ltd v Commissioner of State Revenue	View on:JADE[2011] WASCA 228	1 citation Jump To Cite 1 - [2011] WASCA 228
Grigsby v Melville	View on:ICLRUK[1972] 1 WLR 1355	2 citations Jump To Cite 1 - [1972] 1 WLR 1355 Cite 2 - [1972] 1 WLR 1355
Hare v Van Brugge	View on:NSWLR(2013) 84 NSWLR 41	3 citations Jump To Cite 1 - (2013) 84 NSWLR 41 Cite 2 - (2013) 84 NSWLR 41 Cite 3 - (2013) 84 NSWLR 41
Hare v Van Brugge	View on:JADE[2013] NSWCA 74	4 citations Jump To Cite 1 - [2013] NSWCA 74 Cite 2 - [2013] NSWCA 74 Cite 3 - [2013] NSWCA 74 Cite 4 - [2013] NSWCA 74
Hemmes Hermitage Pty Ltd v Abdurahman & Anor	View on:NSWLR(1991) 22 NSWLR 343	1 citation Jump To Cite 1 - (1991) 22 NSWLR 343
Hill v Tupper	(1863) 159 ER 51	2 citations Jump To Cite 1 - (1863) 159 ER 51 Cite 2 - (1863) 159 ER 51
Hill v Tupper	[1863] EngR 493	1 citation Jump To Cite 1 - [1863] EngR 493
Horsell International Pty Ltd v Divetwo Pty Ltd	View on:JADE[2013] NSWCA 368	1 citation Jump To Cite 1 - [2013] NSWCA 368
In Re Ellenborough Park	View on:ICLRUK[1956] 1 Ch 131	1 citation Jump To Cite 1 - [1956] 1 Ch 131
Kelly v The Queen	View on:JADE(2004) 218 CLR 216	3 citations Jump To Cite 1 - (2004) 218 CLR 216 Cite 2 - (2004) 218 CLR 216 Cite 3 - (2004) 218 CLR 216
Kelly v The Queen	View on:JADE[2004] HCA 12	3 citations Jump To Cite 1 - [2004] HCA 12 Cite 2 - [2004] HCA 12 Cite 3 - [2004] HCA 12
Kitching v Phillips	View on:JADE[2011] WASCA 19	1 citation Jump To Cite 1 - [2011] WASCA 19
Kladis v Lowe	View on:JADE[2016] NSWSC 1834	2 citations Jump To Cite 1 - [2016] NSWSC 1834 Cite 2 - [2016] NSWSC 1834
London & Blenheim Estates Ltd v Ladbroke Retail Parks Ltd	View on:ICLRUK[1992] 1 WLR 1278	1 citation Jump To Cite 1 - [1992] 1 WLR 1278
Moncrieff v Jamieson	View on:ICLRUK(2007) 1 WLR 2620	2 citations Jump To Cite 1 - (2007) 1 WLR 2620 Cite 2 - (2007) 1 WLR 2620
Moncrieff v Jamieson	[2007] UKHL 42	2 citations Jump To Cite 1 - [2007] UKHL 42 Cite 2 - [2007] UKHL 42
Mount Cathay Pty Ltd v Lend Lease Funds Management Limited	[2013] 1 Qd R 528; [2012] QCA 274	1 citation Jump To Cite 1 - [2012] QCA 274
Multiplex Bluewater Marina Village Pty Ltd v Harbour Tropics Pty Ltd	[2016] QSC 99	3 citations Jump To Cite 1 - [2016] QSC 99 Cite 2 - [2016] QSC 99 Cite 3 - [2016] QSC 99
Multiplex Bluewater Marina Village Pty Ltd v Harbour Tropics Pty Ltd (No 2)	[2016] QSC 192	2 citations Jump To Cite 1 - [2016] QSC 192 Cite 2 - [2016] QSC 192
Re Ellenborough Park	View on:ICLRUK[1956] Ch 131	2 citations Jump To Cite 1 - [1956] Ch 131 Cite 2 - [1956] Ch 131
Red Hill Iron Ltd v API Management Pty Ltd	View on:JADE[2012] WASC 323	2 citations Jump To Cite 1 - [2012] WASC 323 Cite 2 - [2012] WASC 323
Registrar-General of New South Wales v Jea Holdings (Aust) Pty Ltd	View on:NSWLR(2015) 88 NSWLR 351	1 citation Jump To Cite 1 - (2015) 88 NSWLR 351
Registrar-General of New South Wales v Jea Holdings (Aust) Pty Ltd	View on:JADE[2015] NSWCA 74	2 citations Jump To Cite 1 - [2015] NSWCA 74 Cite 2 - [2015] NSWCA 74
Reserve Trust v Sydney Water Corporation	View on:JADE[2014] NSWCA 437	1 citation Jump To Cite 1 - [2014] NSWCA 437
Segelov v Ernst & Young Services Pty Ltd	View on:JADE[2015] NSWCA 156	1 citation Jump To Cite 1 - [2015] NSWCA 156
The Owners of East Freemantle Shopping Centre West Strata Plan 8618 v Acton Supermarkets Pty Ltd	View on:JADE[2008] WASCA 1	1 citation Jump To Cite 1 - [2008] WASCA 1
Towers v Stolyar	View on:JADE[2017] NSWSC 526	1 citation Jump To Cite 1 - [2017] NSWSC 526
Vincent Nominees v Western Australian Planning Commission	View on:JADE[2012] WASC 28	1 citation Jump To Cite 1 - [2012] WASC 28
Watson v Scott	[2016] 2 Qd R 484; [2015] QCA 267	4 citations Jump To Cite 1 - [2015] QCA 267 Cite 2 - [2015] QCA 267 Cite 3 - [2016] 2 Qd R 484 Cite 4 - [2016] 2 Qd R 484
Weigall v Toman	[2008] 1 Qd R 192; [2006] QSC 349	4 citations Jump To Cite 1 - [2006] QSC 349 Cite 2 - [2006] QSC 349 Cite 3 - [2008] 1 Qd R 192 Cite 4 - [2008] 1 Qd R 192
Westfield Management Limited v Perpetual Trustee Company Limited	View on:JADE(2007) 233 CLR 528	3 citations Jump To Cite 1 - (2007) 233 CLR 528 Cite 2 - (2007) 233 CLR 528 Cite 3 - (2007) 233 CLR 528
Westfield Management Ltd v Perpetual Trustee Company Ltd	View on:JADE[2007] HCA 45	2 citations Jump To Cite 1 - [2007] HCA 45 Cite 2 - [2007] HCA 45
Zenere v Leate	(1980) 1 BPR 97,029	1 citation Jump To Cite 1 - (1980) 1 BPR 97,029
Zenere v Leate	(1980) BPR 97,029	1 citation Jump To Cite 1 - (1980) BPR 97,029

Cases Citing List of cases on Queensland Judgments citing this Judgment

Case Name	Full Citation	Frequency
Action Health Centre Pty Ltd v Searipple Holdings Pty Ltd	[2022] QCATA 7	3 citations
Body Corporate for Vision Centre Gold Coast Community Title Scheme 29190 v Nerang Qld Pty Ltd	[2024] QSC 152	1 citation
Carless v Johnson	(2023) 13 QR 612; [2023] QCA 29	1 citation
Gold Coast City Council v Sunland Group Ltd	(2019) 1 QR 304; [2019] QCA 118	3 citations
Multiplex Bluewater Marina Village Pty Ltd v Harbour Tropics Pty Ltd (No 2)	[2017] QCA 247	3 citations
Vickers v Queensland Building and Construction Commission	[2019] QCA 66	1 citation
WorkCover Queensland v Yang	(2022) 12 QR 43; [2022] QCA 196	3 citations

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Multiplex Bluewater Marina Village Pty Ltd v Harbour Tropics Pty Ltd[2017] QCA 202