Hillpalm Pty Ltd v Heaven's Door Pty Ltd

HIGH COURT OF AUSTRALIAMcHUGH ACJ,KIRBY, HAYNE, CALLINAN AND HEYDON JJHILLPALM PTY LIMITED  APPELLANTANDHEAVEN'S DOOR PTY LIMITED  RESPONDENTHillpalm Pty Ltd v Heaven's Door Pty Ltd[2004] HCA 591 December 2004S530/2003ORDER1.        Appeal allowed with costs.2.Orders of the New South Wales Court of Appeal made on 3 October 2002 set aside and in their place order:(i)       Appeal allowed with costs.(ii)Paragraphs 1 to 5 of the orders of the New South Wales Land and Environment Court made on 7 June 2001 set aside and in their place order that the application is dismissed with costs.On appeal from the Supreme Court of New South WalesRepresentation:D F Jackson QC with P R McGuire for the appellant (instructed by Bolster & Co)T F Robertson SC with L M Byrne for the respondent (instructed by Woolf Associates)Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.CATCHWORDSHillpalm Pty Ltd v Heaven's Door Pty LtdReal Property – Easements – Subdivision of land – Adjoining lots on a subdivision – Proposed plan of subdivision depicted "proposed right of way 10 wide" across one lot – Council approved subdivision – Whether creation of easement was a condition of the grant of approval of the subdivision – Easement not registered under the Real Property Act 1900 (NSW) – Whether appellant required to grant registered easement of right of way. Real Property – Land titles under the Torrens system – Exceptions to indefeasibility of registered title – Whether Council's consent to the subdivision...