Breen v Clough

[2018] NSWCA 172

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Breen v Clough [2018] NSWCA 172

Hearing dates:

2 August 2018

Date of orders:

02 August 2018

Decision date:

08 August 2018

Before:

Gleeson JA, Sackville AJA, Emmett AJA

Decision:

1.    The notice of appeal is dismissed as incompetent.
2.    Refuse the oral application by Mr Breen and Ms Dillon for leave to appeal.
3.    Refuse leave to appeal with respect to the proposed cross-appeal by Ms Clough.
4.    Each party bear their own costs in this Court.

Catchwords:

APPEALS – appeal incompetent – no realistic prospect on appeal of obtaining judgment for at least $100,000

 

APPEALS – oral application for leave to appeal refused – no issue of principle – no injustice in refusing leave

APPEALS – summons seeking leave to cross-appeal – s 101(2)(r)(ii) not engaged – leave refused

Legislation Cited:

Conveyancing Act 1919 (NSW), s 88B
Occupational Health and Safety Act 2000 (NSW), s 91
Supreme Court Act 1970 (NSW), s 101(2)(r)

Uniform Civil Procedure Rules 2005 (NSW), rr 51.22, 51.41

Cases Cited:

Breen v Clough (No 2) [2018] NSWSC 158
Coshott v Vardas [2017] NSWCA 258
Horseshoe Pastoral Co Pty Ltd v Rixon [2018] NSWCA 121
Milne v James (1910) 13 CLR 165
Oertel v Crocker (1947) 75 CLR 261; [1947] HCA 40
Pawlowska v Zajglic [2011] NSWCA 118
Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206

Category:

Principal judgment

Parties:

Douglas Breen (First Appellant)
Tracey Dillon (Second Appellant)
Christine Clough (First Respondent)

Representation:

Counsel:
Mr C Ireland (Appellants)
Mr DP O’Connor / Ms FJ McNeil (Respondent)

  Solicitors:
DPH Lawyers (Appellants)
Redmond Hale Simpson (Respondent)

File Number(s):

2017/386557

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity Division

Citation:

[2017] NSWSC 1681

Date of Decision:

5 December 2017

Before:

Darke J

File Number(s):

2014/343553

Judgment

1. THE COURT: These proceedings arise out of a dispute between neighbours relating to easements for access and storage. The major dispute relates to the use of an inclinator located at or near to the boundary of the two neighbouring lots owned by the parties. As the primary Judge observed, the inclinator and the terms of the easement governing its use have been the focus of tension and conflict between the parties since 2010. [1]

   1. Breen v Clough [2017] NSWSC 1681 (Primary Judgment) at [2]. A cross-claim by the respondent seeking to recover amounts by way of contribution to the costs of repair and maintenance of the inclinator was settled in August 2017 when the respondent accepted the appellants’ Offer of Compromise.

2. The contest culminated in the appellants bringing proceedings in the Equity Division in November 2014 claiming that the respondent had wrongfully interfered with their rights as the proprietors of the dominant tenement entitled to the benefit of an easement of access over the respondent’s land. They also claimed that the respondent had trespassed onto their land by erecting fencing and other structures inhibiting their access to the inclinator.

3. The appellants enjoyed a measure of success before the primary Judge. His Honour made orders requiring the respondent to remove certain fencing, provide the appellants with keys to various lockable gates, install lift controls (or call stations) at landings serviced by the inclinator and notify SafeWork NSW when the required works are completed. His Honour also entered judgment for the appellants against the respondent in the sum of $6,000 by way of damages for nuisance.

4. The appellants [2] were not content with the success they achieved at trial. They filed a notice of appeal, purportedly as of right, challenging the primary Judge’s rejection of the bulk of their claim for damages for nuisance. They claimed that the primary Judge was wrong to conclude that the respondent committed acts of nuisance only after April 2015. The appellants argued that the primary Judge should have found that the respondent committed acts of nuisance by shutting down the inclinator and locking out the appellants from using it between May 2011 and April 2015. On this basis, so the appellants contended, they were entitled to compensatory damages in respect of the acts of nuisance committed over the four year period.

   2.    We refer to the moving parties in this Court as the “appellants” notwithstanding that, as will appear, they require leave to appeal.

5. The appellants also contended that the primary Judge should have awarded them exemplary damages in respect of what they argued was the respondent’s deliberate conduct in denying them access to the inclinator. Mr Ireland, who appeared for the appellants, submitted that they were seeking exemplary damages not only for the post-April 2015 acts of nuisance, but for the pre-April 2015 acts. Mr Ireland conceded, however, that the notice of appeal only challenged the primary Judge’s rejection of the appellants’ claim for exemplary damages in respect of post-April 2015 acts of nuisance.

6. Not surprisingly, given the history of conflict between the parties, the respondent filed a summons seeking leave to cross-appeal from part of the decision of the primary Judge. Leave was sought principally to challenge the order entering judgment for the appellants against the respondent in the sum of $6,000. The appellants opposed the grant of leave.

Proceedings in this Court

7. Neither the appellants nor the respondent paid proper attention to the rules governing appeals and applications for leave to appeal. The Uniform Civil Procedure Rules 2005 (NSW) (UCPR) contain the following provisions:

“51.22   Absence of restriction on appeals as of right to be shown by certificate or affidavit

(1)   This rule applies to an appeal or cross-appeal as of right that is restricted by any Act by reference to a specified amount or value.

(2)   If an amount in issue in an appeal or cross-appeal to which this rule applies exceeds the specified amount or value, the notice of appeal or cross-appeal must include a certificate to the effect that the amount in issue exceeds the specified amount or value, signed by:

(a)   a legal practitioner, or

(b)   if an appellant or cross-appellant is not represented by a legal practitioner, by the appellant or cross-appellant.

…

51.41   Objections to competency of appeal

(1)   A respondent who objects to the competency of an appeal must, by notice of motion filed and served on all other parties to the appeal within 28 days after service on the respondent of the notice of appeal, apply to the Court for an order dismissing the appeal as incompetent.

(2)   If the respondent fails to comply with subrule (1) and the appeal is nevertheless dismissed as incompetent:

(a)   the respondent is not entitled to costs of the appeal unless the Court otherwise orders, and

(b)   the Court may order the respondent to pay the appellant any costs of the appeal proving useless or unnecessary.”

8. Section 101(2)(r) of the Supreme Court Act 1970 (NSW) (Supreme Court Act) provides that an appeal shall not lie to the Court of Appeal except by leave of the Court of Appeal from:

“(r)   a final judgment or order in proceedings of the Court, other than an appeal:

(i)   that involves a matter at issue amounting to or of the value of $100,000 or more, or

(ii)   that involves (directly or indirectly) any claim, demand or question to or respecting any property or civil right amounting to or of the value of $100,000 or more.”

9. The notice of appeal filed on behalf of the appellants did not include a certificate from their solicitor in accordance with UCPR r 51.22(2). This is despite the fact that the approved form for a notice of appeal includes a section for the required certification. [3] It is clear that the appellant’s representatives did not advert to the need to demonstrate that the purported appeal satisfied the requirements of s 101(2)(r) of the Supreme Court Act. How this was overlooked and the required certification omitted from the notice of appeal has not been explained.

   3.    Approved Civil Form 105.

10. The respondent’s representatives likewise did not advert to the apparent absence of proof that the appellants were entitled to file an appeal as of right from the primary Judge’s decision. The respondent did not file a notice of motion pursuant to r 51.41(1) seeking an order dismissing the appeal as incompetent. [4]

    4. As to the responsibilities of a respondent to take steps if an appeal appears to be incompetent see Coshott v Vardas [2017] NSWCA 258.

11. The Court raised the competency of the appeal during the hearing. Mr Ireland submitted that, despite the absence of the certificate required by r 51.22(2) or an affidavit supporting a claim for damages in excess of $100,000, there was sufficient evidence to demonstrate that an appeal lay as of right. When confronted with the difficulties facing this submission Mr Ireland made an oral application for leave to appeal. This application was opposed by Mr O’Connor, who appeared with Ms McNeil for the respondent.

12. At the conclusion of the hearing the Court pronounced the following orders:

1.   The notice of appeal is dismissed as incompetent.

2.   Refuse the oral application by Mr Breen and Ms Dillon for leave to appeal.

3.   Refuse leave to appeal with respect to the proposed cross-appeal by Ms Clough.

4.   Each party bear their own costs in this Court.

5.   Reasons reserved.

These are the reasons for the Court’s orders.

Background facts

13. In about November 2009 the appellants became the registered proprietors as joint tenants of Lot 15 in DP 11270 known as 118 Moons Avenue Lugarno (No 118). The respondent became the registered proprietor of the neighbouring property, Lot 14 in DP 11270 (No 116), in about March 2002. It appears that the lots comprising No 118 and No 116 were created by the registration of DP 11270 in 1922.

14. The respondent has lived in No 116 since acquiring the property. The appellants at first leased No 118 but moved in themselves in July 2011 when tenants vacated the premises.

15. Each of No 116 and No 118 has a frontage of about 4.27 metres to Moons Avenue and a depth of about 83 metres to the northern boundary of the lot, which is the mean high water mark of the Georges River.

16. No 116 and No 118 have a common boundary, being the western boundary of No 116 and the eastern boundary of No 118. A substantial brick dwelling is erected on each lot at or near the northern boundary. Each lot descends about 44 metres from Moons Avenue to the northern boundary.

17. A brick garage and ancillary room are erected close to Moons Avenue. The proprietors of No 116 and No 118 are entitled to use the garage pursuant to cross-easements on their titles.

18. The two easements involved in the proceedings were created by the registration on 18 January 2002 of DP 1036625. This attached an instrument setting out the terms of easements to be created pursuant to s 88B of the Conveyancing Act 1919 (NSW) (s 88B Instrument).

19. The s 88B Instrument relevantly created the following easements:

• “Right of Access (inclinator) and Easement for Services 0.75, 0.9 wide, 1 wide and variable” (Inclinator Easement).

• “Easement for storage variable width” (Storage Easement).

20. The Inclinator Easement was expressed to burden and benefit both No 116 and No 118 and a third lot owned by the appellants. The Storage Easement was also expressed to burden and benefit both No 118 and No 116.

21. The relevant terms of the Inclinator Easement are as follows:

“Right of Access (inclinator)

(a)   The right of access is subject to overhang of eaves and guttering.

(b)   In this clause works refers to the inclinator, supports, structures, carriage and items ancillary thereto.

(c)   The persons having the benefit of this easement must:

(i)   take all reasonable and timely steps to ensure proper maintenance, repair and replacement of all improvements from time to time in or on the easement site and promptly repair any damage to those; and

(ii)   keep current all reasonable insurance policies in connection with the works; and

(iii)   punctually pay for the cost of all the works and where more than one proprietor is liable for the cost of the works, the cost of the works must be paid in equal shares by all proprietors having the burden of this covenant; and

(iv)   comply with all laws and legal requirements in relation to the works; and

(v)   make good any collateral damage; and

(vi)   share equally the cost of any services supplied for the benefit of each lot having the burden of this right and where that cost has been billed by the supplier of that service to one or more proprietors having the burden of this positive covenant, each other proprietor must reimburse that proprietor for one half of the cost of that service within 14 days of a written demand for reimbursement by that proprietor who must with the demand provide a copy of the invoice for the service.”

22. The inclinator was apparently installed in the 1990s by the previous proprietors of No 116 and No 118. The land over which the Inclinator Easement exists is largely located upon the respondent’s land (No 116), although some supports rest upon No 118. The parties seem to have assumed throughout this litigation that the inclinator, including a series of landings, is wholly erected on the strip of land subject to the Inclinator Easement. It is by no means clear that this is the case but for present purposes nothing turns on the parties’ apparent misapprehension.

23. The inclinator was registered as an item of plant under the provisions of the (since repealed) Occupational Health and Safety Act 2000 (NSW) (OHS Act). Shortly after the respondent became registered as the proprietor of No 116, she was noted by WorkCover NSW (WorkCover) as the “controller” of the inclinator. [5]

    5.    On 1 September 2015, WorkCover NSW was replaced by three new entities including SafeWork NSW.

24. As the primary Judge found, much of the dispute between the parties has related to their respective rights to undertake inspections of the inclinator and carry out works to repair and maintain the inclinator so that it conforms with required standards. [6] The disputes began in 2010 when the first appellant (Mr Breen) wanted to participate actively in matters to do with the maintenance and upgrading of the inclinator. As a result of his actions WorkCover became involved and issued a series of Improvement Notices in 2010 pursuant to s 91 of the OHS Act. The parties fell into serious conflict in relation to the notices, in particular as to the work necessary to satisfy WorkCover’s requirements. [7]

    6. Primary Judgment at [12].

    7. Primary Judgment at [13].

25. The inclinator was largely out of service and therefore unavailable to the appellants from about May 2011 until April 2015. The primary Judge found that during this period the respondent engaged in conduct that would ordinarily constitute a substantial interference with the appellants’ rights. The conduct included:[8]

“(a)   the locking of, and retention of the only keys to the electricity box, so as to deprive the plaintiffs of the ability to turn the power on or off as necessary;

(b)   the locking of, and retention of the only keys to the control panel of the inclinator car, so as to deprive the plaintiffs of the ability to operate the inclinator car; and

(c)   the locking of gates at landings at the street level and storeroom level and retention of the only keys to the locks, so as to deprive the plaintiffs of the ability to access the inclinator at those landings.”

8. Primary Judgment at [220].

26. Nonetheless the primary Judge considered that the appellants had not made out a case of substantial interference with their rights under the Inclinator Easement or the Storage Easement during the four year period. His Honour reached this conclusion for the following reasons: [9]

“It is clear that the [respondent] wanted to have the required works done, and over an extended period sought the [appellants’] agreement in that regard. Despite the [appellants] indicating in August 2013 a willingness to do the works, this did not eventuate. I do not think it can be fairly said that the [appellants] were obstructed in the carrying out of the works. The [appellants] had a more than ample opportunity to have the works carried out. In my opinion it was not unreasonable for the [respondent] herself to finally take steps to have the works carried out on the [appellants’] side of the track. It was also not unreasonable for her, in the meantime, to maintain the limited regime for use of the inclinator, as agreed with Mr Shoobert [of WorkCover]. That is the case even though that had the practical effect of preventing the [appellants] from using the inclinator.

The [appellants], in my opinion, were not acting in accordance with their duties under the easement. Both parties are obliged to ‘comply with all laws and legal requirements in relation to the works’. In my view, even though the notices are not directed to the [appellants], they were bound to co-operate with the [respondent] in complying with the WorkCover notices, and that co-operation was not forthcoming. (There was also evidence that during this period the [appellants] were not paying, or at least not paying promptly, their share of the electricity costs.) In these circumstances, I do not think that the actions of the [respondent] in effectively preventing the [appellants] from using the inclinator pending compliance with the notices, can be regarded as a substantial interference with the [appellants’] rights under the inclinator easement (or the storage easement).”

9.    Primary Judgment at [218]-[219].

27. This conclusion rested in part upon the primary Judge’s preference for the evidence of the respondent over that of Mr Breen. [10]

    10.    Primary Judgment at [167]-[169].

28. The primary Judge recorded that the appellants’ principal complaint concerning matters after April 2015 related to the appellants’ construction of gates and fences in February and March 2015. [11] The appellants also complained that they had not been provided with keys to the electricity box, the control panel in the inclinator car and the locks on various gates. [12]

    11. Primary Judgment at [227].

    12. Primary Judgment at [230].

29. The primary Judge rejected some of the appellants’ complaints, but found that others were made out. His Honour summarised the actions of the respondent that constituted a substantial interference with the appellants’ rights as follows:[13]

“(1)   failing to comply with the requirements of WorkCover … concerning the storeroom landing, and instead erecting a fence across the landing at that level;

(2)   locating the lift controls in respect of landings 2, 3 and 4 on the [appellants’] side, inside the runway enclosure;

(3)   failing to provide the [appellants] with a key to the electricity box which houses the switch for the inclinator; and

(4)   failing to provide the [appellants] with keys to the locks on gates at landings.”

13. Primary Judgment at [260].

30. In light of these findings the primary Judge made orders requiring the respondent to:

(1)   remove the fence at the storeroom landing and install a lockable gate;

(2)   provide the appellants with a key to the lockable gate;

(3)   install lift controls on the outside of inclinator runway on the side of the track closer to No 118 at three landings;

(4)   notify SafeWork NSW of completion of the works and invite inspection;

(5)   provide the appellants with a key to the electricity box;

(6)   provide the appellants with keys to locks on any of the gates on landings.

31. The primary Judge found that an award of damages of $6,000 would be appropriate to compensate the appellants for the inconvenience they sustained because of lack of access to the storeroom after April 2015 and the location of the lift controls. Hence his Honour gave judgment for the appellants in the sum of $6,000.

31. The primary Judge rejected the appellants’ (unpleaded) claim for exemplary damages based on the denial of access to the storeroom. His Honour considered that the respondent’s conduct had to be assessed “in the broader context of the ongoing impasse concerning the … works [necessary] to satisfy the WorkCover notices”. It was the appellants who had largely been responsible for the situation.

32. The appellants filed a notice of appeal on 2 March 2018. They purported to appeal as of right from part of the decision of the primary Judge relating to:

“a. the finding that there was an implied duty to co-operate in the terms of the easement in the implementation of notices issued to the respondent by WorkCover under s91 of the Occupational Health and Safety Act 2001 that conferred a right to unilaterally shut down the inclinator;

b.   the finding that the actions of the respondent in preventing the appellants from using the inclinator prior, to April 2015 was not a substantial interference with the appellants’ rights under the inclinator easement because the appellants did not co-operate with the respondent in complying with the WorkCover notices; and

c.   the finding that several acts that were found to ordinarily constitute a substantial interference with the appellants’ rights, including preventing the appellants from using the inclinator, did not bear that character because the appellants did not co-operate with the respondent in complying with the WorkCover notices;

d. the finding that exemplary damages for the respondent’s conduct in replacing the storeroom gate with a fence at the storeroom landing was not justified by reason of the appellants breach of their duty to co-operate in the implementation of notices issued to the respondent by WorkCover under s 91 of the Occupational Health and Safety Act 2001, when the installation of the storeroom gate was in breach of the relevant WorkCover notice.”

There was no complaint about the other orders made by the primary Judge which effectively settled the dispute concerning access to the inclinator and compliance with WorkCover NSW requirements.

34. The appellants sought orders remitting the proceedings for the assessment of damages in relation to the respondent’s

“substantial interference with the appellants[’] rights under the [Inclinator Easement] prior to April 2015, and for the determination of exemplary damages for the installation of the storeroom fence”.

The appeal

Competency

35. In order for the appellants to establish that s 101(2)(r) of the Supreme Court Act does not deprive them of an appeal as of right they must show that they have a realistic prospect on appeal of obtaining judgment in their favour for at least $100,000. [14] In the absence of evidence specifically directed to this issue, Mr Ireland relied on a schedule of damages handed up at the trial. The schedule purported to show that the appellants’ claim for compensatory damages amounted to nearly $300,000. In addition the schedule suggested that exemplary damages of $40,000 might be awarded.

    14. Pawlowska v Zajglic [2011] NSWCA 118 at [14]-[15] (Campbell JA) and cases cited there.

36. The schedule was not evidence of the amount the appellants could realistically claim as damages. When Mr Ireland was asked for evidence to support the claims itemised in the schedule, he was unable to identify any material in the appeal books that would justify the appellants’ claim for compensatory damages in an amount anywhere near $100,000.

37. The largest item in the schedule was $175,595 supposedly for rent lost by the appellants from mid-2011 to April 2015 by reason of the respondent’s acts in denying access to the inclinator. But from July 2011 the appellants lived in No 118, having sold their previous home. At most the claim could have been for diminution in the rental value of No 118 (not the entire rental value) for perhaps two months.

38. Two items relating to the cost of proposed fencing work amounted to $32,597.50. Not only was Mr Ireland unable to identify any evidence supporting these claims but there was nothing to explain what the items referred to. Claims for the use of a boat to transport supplies and park fees totalling $56,332.50 were said to be supported by affidavit evidence from Mr Breen. But this evidence, which was unsupported by any documentation, verged on the fanciful, implying that the appellants were forced to make about 15 round trips by boat per week simply to ferry supplies to No 118. The affidavit said to support the remarkable amount of $24,360 for park fees did not explain why the appellants could not purchase an annual park ticket at a cost of under $100. Other items listed in the schedule such as the purchase of a lawn mower seemed to lack any evidence or indeed to bear any relationship to any acts of nuisance allegedly committed by the respondent.

39. The claim for exemplary damages apparently assumed that it would be open to the appellants on appeal to seek such damages for the period from 2011-2015. But no such claim had been pleaded and the only justification offered for the claim in the notice of appeal related to the respondent’s acts after April 2015 in relation to access to the storeroom. It is difficult to see how any claim for exemplary damages could succeed, let alone one yielding $40,000.

40. It follows that the appeal is incompetent.

Leave to appeal

41. The principles governing the grant of leave to appeal are well established. They were recently summarised as follows:[15]

“Only if the decision is attended with sufficient doubt to warrant its reconsideration on appeal will leave be granted: Sharpe v Heywood [2013] NSWCA 192 at [34]; McMahon v Permanent Custodians Ltd [2013] NSWCA 275 at [57]. Ordinarily, it is only appropriate to grant leave where there is an issue of principle, a question of general public importance, or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable: JaycarPty Ltd v Lombardo [2011] NSWCA 284 at [46]. It is well established that it is not sufficient merely to show that the trial judge was arguably wrong: Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [32].”

15. Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28] (Gleeson JA, Macfarlan and Payne JJA agreeing).

42. Mr Ireland said that the principal argument he wished to advance if leave was granted was that the primary Judge erred in finding that the appellants were under a duty to co-operate with the respondent’s efforts to make the improvements necessary to comply with WorkCover’s notice. However, this argument, contrary to Mr Ireland’s submissions, does not raise any issue of principle. It rests on the particular wording of the Inclinator Easement and the particular physical characteristics of No 116 and No 118. In any event, the key finding made by the primary Judge was that the impasse over a period of years was largely the responsibility of the appellants. Whether or not there was a duty to co-operate under the terms of the Inclinator Easement, the attribution of responsibility was material to the conclusion that the respondent had not unreasonably interfered with the rights of the appellants.

43. The appellants have not established that they would suffer significant injustice if leave to appeal is refused. Their claim to damages is barely arguable and appears, at best, to be for an amount well under $100,000.

44. Two further matters are significant. First, like much litigation between neighbours, the costs incurred by the parties in these proceedings have been wholly disproportionate to the value and significance of the issues in dispute. A relatively minor dispute capable of resolution by some common sense and goodwill has escalated into an Equity Division hearing lasting five days and producing a judgment of 86 pages. [16] If leave was granted and the appeal allowed, the consequence would be yet further litigation in order to have the appellants’ modest claim for damages assessed.

    16. The primary Judge delivered a separate judgment dealing with costs: Breen v Clough (No 2) [2018] NSWSC 158 (Costs Judgment).

45. Secondly, one of the arguments the appellants belatedly wish to raise on the appeal is that it was always open to the respondent to undertake the necessary works on No 118 by virtue of her rights under the Inclinator Easement. Yet the appellants’ position over a lengthy period was that their consent was required and would not be forthcoming.

46. For these reasons the Court refused the appellants leave to appeal.

Cross-appeal

47. The respondent’s summons for leave to cross-appeal challenged the findings that:

• the installation of the fence in place at the storeroom landing infringed the appellants’ rights under “the easement” (presumably meaning the Inclinator Easement); and

• the respondent was liable to pay $6,000 damages by reason of the infringement.

48. The draft amended notice of cross-appeal contained grounds contending that:

• the primary Judge should have found that the installation of the fence was an appropriate response to the WorkCover notice;

• the primary Judge should have found that the works undertaken at the storeroom level did not constitute an unreasonable interference with the appellants’ rights under the Inclinator Easement because they were largely responsible for the “ongoing impasse” relating to the work required by WorkCover; and

• the primary Judge failed to take into account that the storeroom level was not a “landing” within the meaning of the relevant Australian Standard.

49. Despite filing the summons seeking leave to cross-appeal, the respondent’s written submissions argued, or at least asserted, that s 101(2)(r)(ii) of the Supreme Court Act was engaged because the provision was concerned not with the value of the claim but the value of the lot burdened by the Storage Easement (that is No 116). In support of this submission the respondent cited the decision of the High Court in Milne v James. [17] However this decision was not followed by the High Court in Oertel v Crocker. [18]

    17. (1910) 13 CLR 165.

    18. (1947) 75 CLR 261; [1947] HCA 40.

50. In oral submissions Mr O’Connor appeared to accept that the respondent required leave to appeal. In any event, the correct position was recently restated by this Court in Horseshoe Pastoral Co Pty Ltd v Rixon:[19]

“It is common ground that the value of the servient tenement over which the primary judge held that [the respondent] was entitled to an equitable easement is more than $100,000. That is not the question. The question is whether the right or property in issue on the appeal is of more than the value.”

Mr O’Connor did not contend that the right or property in issue or the cross-appeal was valued at more than $100,000.

19. [2018] NSWCA 121 at [3].

51. The value of the rights in issue in the proposed cross-appeal is very low and pales into insignificance compared with the costs the parties have incurred in litigating their claims. The draft amended notice of cross-appeal contains grounds limited to challenging findings of fact. No question of principle or public importance was identified by Mr O’Connor. Nor is there any injustice to the respondent in denying leave to cross-appeal. As Mr O’Connor frankly admitted, leave was sought only because the appellants filed a notice of appeal.

52. For these reasons the Court refused to grant the respondent leave to cross-appeal.

**********

Endnotes

Decision last updated: 08 August 2018