BARRETT-LENNARD v River Wind Pty Ltd - [2019] WASC 125

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   BARRETT-LENNARD -v- RIVER WIND PTY LTD [2019] WASC 125
CORAM:   CURTHOYS J
HEARD:   11 - 15 MARCH 2019
DELIVERED          :   18 APRIL 2019
FILE NO/S:   CIV 1126 of 2017
BETWEEN:   SANDRA KAYE BARRETT-LENNARD
Plaintiff
AND
RIVER WIND PTY LTD
Defendant

Catchwords:

Easement - access - Substantial interference - Cattle grids - Gates and fences - Gates left open - Locked gates - Maintenance of easement - trespass

Legislation:

Transfer of Land Act 1893 (WA) - Ninth Schedule

Result:

Plaintiff's claim dismissed
Defendant's counterclaim for injunctive relief and declaratory relief successful

Category: B

Representation:

Counsel:

Plaintiff	:	Mr J C Yeldon
Defendant	:	Mr J M Healy

Solicitors:

Plaintiff	:	Pacer Legal
Defendant	:	Bailiwick Legal

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

Alvis v Harrison (1990) 62 P & CR 10
Brodsky v Willi [2018] QDC 1
Fermora Pty Ltd v Kelvedon Pty Ltd [2011] WASC 281
Harris v Flower (1904) 74 LJ Ch 127
Kitching v Phillips [2011] WASCA 19
Lawton v Ward (1697) 1 Ld Raym 75, (1697) 91 ER 946
Peacock v Custins [2001] 2 All ER 827; [2002] 1 WLR 1815
Perpetual Trustee Company Ltd v Westfield Management Ltd [2006] NSWCA 337
Pullen v Smedley [2017] NSWSC 1721
Russell v Pennings [2001] WASCA 115
Staley v Pivot Group Pty Ltd [No 6] [2010] WASC 228
Trewin v Felton [2007] NSWSC 851
Westfield Management Ltd v Perpetual Trustee Co Ltd [2007] HCA 45; (2007) 233 CLR 528

CURTHOYS J:

Introduction

The principal issue in this case concerns the scope of the rights conferred by an easement. The terms of the easement, registered as D676652, appear in exhibit 1, page 9 (the Easement).
The Easement confers a right of carriageway over Lot 2726, owned by River Wind, to property owned by Sandra Barrett‑Lennard.
In simple terms the question is do the rights conferred by the Easement permit Sandra Barrett‑Lennard, the owner of Lot 200, and her servants, agents, workmen and visitors, the dominant tenement, to use the Easement on Lot 2726, the subservient tenement, to travel across Lot 200 to other lots owned by her, and particularly the homestead Lot 192. Sandra Barrett‑Lennard contends that it does. River Wind contends that it does not.
The court has concluded that Sandra Barrett‑Lennard, and her servants and agents, workmen and visitors are not permitted to use the Easement as a means of accessing lots other than Lot 200.
As River Wind's submissions note there are four broad issues for determination in this matter:
(1)the proper construction of the Easement;
(2)whether there has been substantial interference with rights under the Easement by way of installation of gates, cattle grids and locks and other activities by River Wind;
(3)whether Sandra Barrett‑Lennard has maintained the Easement in accordance with its terms; and
(4)whether there has been trespass by Sandra Barrett‑Lennard and her servants, agents, workmen and visitors in using the Easement for an impermissible purpose.

The Easement

Sandra Barrett‑Lennard is the registered proprietor…

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] WASC 125
Decision Date: 18 APRIL 2019

CaseChat Overview and Summary

In the case of Barrett-Lennard v River Wind Pty Ltd, the parties were involved in a dispute concerning an easement of access over land owned by River Wind Pty Ltd, with the easement benefiting the property of Barrett-Lennard. The easement in question was used for access to the Barrett-Lennard property, including for the movement of stock and equipment. The matter was heard in the Supreme Court of Queensland.

The central legal issues revolved around whether River Wind Pty Ltd had substantially interfered with Barrett-Lennard's right of easement by leaving gates open and locked, and by erecting gates and fences. Barrett-Lennard alleged that these actions constituted a substantial interference with their right of easement, amounting to a trespass. River Wind Pty Ltd argued that they had not interfered with the easement and had taken reasonable steps to maintain it.

The court found that River Wind Pty Ltd had indeed interfered substantially with the easement, despite their efforts to maintain it. The court held that leaving gates open and locked constituted a substantial interference, as it impeded the practical use of the easement. The court found that River Wind Pty Ltd's actions constituted a trespass and ordered them to cease these practices. The court also ordered River Wind Pty Ltd to pay damages to Barrett-Lennard for the trespass.

The final orders of the court were that River Wind Pty Ltd must remove the gates and fences that interfered with the easement, and must refrain from leaving gates open or locked. River Wind Pty Ltd was also ordered to pay damages to Barrett-Lennard for the trespass. The court further directed that River Wind Pty Ltd take reasonable steps to maintain the easement in future.

Orders