Barrett-Lennard v River Wind Pty Ltd

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JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   BARRETT-LENNARD -v- RIVER WIND PTY LTD [2019] WASCA 199

CORAM:   MURPHY JA

MITCHELL JA

VAUGHAN JA

HEARD:   7 NOVEMBER 2019

DELIVERED          :   6 DECEMBER 2019

FILE NO/S:   CACV 59 of 2019

BETWEEN:   SANDRA KAYE BARRETT-LENNARD

Appellant

AND

RIVER WIND PTY LTD

Respondent

ON APPEAL FROM:

Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA

Coram:   CURTHOYS J

Citation: BARRETT-LENNARD -v- RIVER WIND PTY LTD [2019] WASC 125

File Number            :   CIV 1126 of 2017


Catchwords:

Torrens system land - Easement - Carriageway - Proper construction of easement - Whether Easement allowed access beyond dominant tenement to other land owned by holder of dominant tenement

Carriageway - Whether real or substantial interference by gate over cattle grid and midway gate and fence

Damages for excessive user of carriageway - Whether evidence to support an award of damages of $5,000 - Whether an award of nominal damages

Practice and procedure - New point on appeal - Appellant seeking to establish easement by prescription on appeal when the point had not been litigated at trial

Legislation:

Transfer of Land Act 1893 (WA), s 65, Ninth Schedule

Result:

Appeal as to damages allowed
Appeal otherwise dismissed

Category:    A

Representation:

Counsel:

Appellant : M J McCusker QC & J C Yeldon
Respondent : J M Healy

Solicitors:

Appellant : Pacer Legal
Respondent : Bailiwick Legal

Case(s) referred to in decision(s):

Bursill Enterprises Pty Ltd v Berger Bros Trading Co Pty Ltd [1971] HCA 9

Attorney‑General v Blake [2001] 1 AC 268

Barrett‑Lennard v River Wind Pty Ltd [2019] WASC 125

Baume v Commonwealth [1906] HCA 92; (1906) 4 CLR 97

Berryman v Sonnenschein [2008] NSWSC 213

Bunnings Group Ltd v CHEP Australia Ltd [2011] NSWCA 342; (2011) 82 NSWLR 420

Chick v Dockray [2011] TASFC 1; (2011) 20 Tas R 167

Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54; (1991) 174 CLR 64

Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1

Currumbin Investments Pty Ltd v Body Corp Mitchell Park Parkwood CTS [2012] QCA 9; [2012] 2 Qd R 511

Dockray v Chick [2010] TASSC 32; (2010) 1 LT(A)R 409

Drake v Gray [1936] 1 Ch 451

Dunell v Phillips (1982) 2 BPR 9517

Fox v Percy [2003] HCA 22; (2003) 214 CLR 118

Gallagher v Rainbow [1994] HCA 24; (1994) 179 CLR 624

Gohl v Hender [1930] SASR 158

Gore v Naheed [2017] EWCA Civ 369

Hare v van Brugge [2013] NSWCA 74; (2013) 84 NSWLR 41

Inverugie Investments Ltd v Hackett [1995] 1 WLR 713

Lim Group Holdings Pty Ltd v Paragreen [2018] VCC 1677

Lowe v Kladis [2018] NSWCA 130; (2018) 19 BPR 38,599

National Trust for Places of Historic Interest or Natural Beauty v White [1987] 1 WLR 907

Nickerson v Barraclough (1980) 1 Ch 325

Parramore v Duggan [1995] HCA 21; (1995) 183 CLR 633

Pettey v…

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Details
Case
[2019] WASCA 199
Decision Date

CaseChat Overview and Summary

The appeal was brought by the respondent, River Wind Pty Ltd, against the appellant, Barrett-Lennard. The case centred around an easement over a carriageway and the alleged interference with its use. The easement was intended to provide access to the appellant's land, which was part of the Torrens system, and to facilitate the movement of livestock. The dispute involved whether the easement permitted access beyond the dominant tenement to other land owned by the appellant. Additionally, the respondent claimed that the appellant had obstructed the easement by installing a gate over a cattle grid and another gate and fence midway along the easement. The appellant also faced allegations of excessive use of the easement, with the respondent seeking damages of $5,000.

The court needed to determine the proper construction of the easement, whether it allowed access beyond the dominant tenement to other land, and if there was a real or substantial interference with the easement. Furthermore, the court had to consider the evidence supporting the award of $5,000 in damages and whether an award of nominal damages was appropriate. The appeal also involved procedural issues, such as whether a new point on appeal, specifically the establishment of an easement by prescription, could be raised when it had not been litigated at trial.

The court found that the easement did not permit access beyond the dominant tenement to other land owned by the appellant. It also determined that the evidence did not support an award of $5,000 in damages for excessive use of the easement, but that nominal damages of $1 were appropriate. Regarding the procedural issue, the court held that a new point on appeal could not be raised if it had not been litigated at trial. Consequently, the appeal was dismissed, and the orders of the primary judge were affirmed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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