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Barrett-Lennard v River Wind Pty Ltd

Barrett-Lennard v River Wind Pty Ltd

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Case Copied 6 December 2019 65 min read

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] WASCA 199
Decision Date: 6 DECEMBER 2019

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