In Bursill Enterprises Pty Ltd v Berger Bros Trading Co Pty Ltd 124 CLR 73, the court was tasked with interpreting the transfer of rights associated with an easement and the occupation of a building erected above a right of way. The judgment clarified the scope of rights transferred under a memorandum of transfer dated 15th May 1872, addressing whether the rights to the buildings erected over the right of way conferred an easement and to what extent the parties could alter such structures. The court held that the transfer did effectively confer certain rights to the building above the right of way to Berger Bros, dismissing the notion that these were merely easements but were, instead, transfers of interest in the land with specific rights to demolish and rebuild, limited to maintaining the existing dimensions of the structure. The decision underlines the importance of comprehensive descriptions in conveyancing documents and notifications on the certificate of title, confirming the need for purchasers to conduct thorough searches to understand the scope of rights and encumbrances attached to real property.
Full text: https://jade.io/article/66319
From the TLDR Caselaw Archive