Campbell v Hamilton

[2025] NSWCA 200

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Campbell v Hamilton [2025] NSWCA 200

Hearing dates:

26 August 2025

Decision date:

03 September 2025

Before:

Ward P; Mitchelmore JA; McHugh JA

Decision:

(1) The notices of motion filed by the applicant dated 25 February 2025 and 25 June 2025 are dismissed.

(2) The applicant is to pay the respondents’ costs of both notices of motion.

Catchwords:

CIVIL PROCEDURE — motion to set aside orders of Court of Appeal — whether orders made irregularly, unlawfully or in bad faith — procedural fairness — where judge put proposition of law to counsel — whether denial of opportunity to respond — no basis to set aside orders

Legislation Cited:

Civil Procedure Act 2005 (NSW), ss 56, 63, 73

Uniform Civil Procedure Rules 2005 (NSW), rr 36.15, 36.16, 36.17, 36.18

Cases Cited:

Burrell v The Queen (2008) 238 CLR 218; [2008] HCA 34

D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12

Perpetual Trustees Australia Ltd v Heperu (No 2) (2009) 78 NSWLR 190; [2009] NSWCA 387

Category:

Principal judgment

Parties:

Robert Campbell (Applicant)
Colin Stewart Hamilton (First respondent)
Penney Louise Hamilton (Second respondent)
Registrar General (Third respondent)

Representation:

Counsel:
Robert Campbell (self-represented)
J Stephenson (First and second respondents)

Solicitors:
Elliot Tuthill Solicitors (First and second respondents)

File Number(s):

2018/00200753

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court

Jurisdiction:

Equity

Citation:

[2018] NSWSC 806

Date of Decision:

4 June 2018

Before:

Slattery J

File Number(s):

2017/156313

JUDGMENT

1. THE COURT: By notice of motion filed on 25 February 2025, the applicant, Robert Campbell, seeks an order setting aside the judgment and orders of the Court of Appeal made on 25 February 2019, except for “clauses 58(2), 59 and 60 (order 2)”. The Court understands those clauses to correspond to numbered paragraphs in the Court of Appeal’s reasons for judgment in Campbell v Hamilton [2019] NSWCA 22; 19 BPR 39,181.

2. This is the second notice of motion that the applicant has filed seeking this relief. The first notice of motion was filed on 12 October 2020. A notice of discontinuance with respect to that motion was filed on 25 January 2021.

3. The applicant submitted that despite the lapse of time, his application should be considered as the judgment of the Court of Appeal’s 2019 judgment was “very apparently wrong” and could only be explained by a denial of procedural fairness on the part of White JA, who wrote the principal judgment (Beazley P and Gleeson JA agreeing). In support of the relief sought, he relied variously on ss 56, 63 and 73 of the Civil Procedure Act 2005 (NSW) and rules 36.15-36.18 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR).

4. The first and second respondents, Colin Hamilton and Penney Hamilton, oppose the relief sought. As the third respondent, the Registrar General, filed a submitting appearance, references to “the respondents” below are to the first and second respondents.

5. The notice of motion should be dismissed. The applicant has not established any basis on which this Court would grant the relief that he seeks in relation to a judgment handed down in February 2019.

Evidence on the notice of motion

6. In support of the notice of motion, the applicant read two affidavits. The first affidavit, sworn on 24 February 2025, which was read other than [21], was accompanied by exhibit RC-1 which was tendered (Ex A). The applicant’s second affidavit was sworn on 7 March 2025. The applicant also tendered:

1. the transcript of the hearing before the Court of Appeal on 6 December 2018 (Ex B);

2. a copy of a registered Transfer Granting Easement that was the subject of the proceedings (Ex C);

3. a bundle of documents produced by the Registrar General in answer to a notice to produce that the applicant issued (Ex D); and

4. a bundle of documents produced by the solicitors for the respondents in answer to a notice to produce that the applicant issued, exclusive of documents subject to claims of privilege (Ex E).

7. The respondents read two affidavits of David Arthur Jordan, solicitor, sworn 7 March 2025 and 13 March 2025. Mr Jordan exhibited to his first affidavit two bundles of documents which were tendered:

1. Exhibit DAJ-1, which contained material that Mr Jordan had exhibited to an affidavit he prepared in response to the previous notice of motion that the applicant filed, sworn 30 November 2020 (Ex 1); and

2. Exhibit DAJ-2, which was said to supplement DAJ-1 (Ex 2).

8. The respondent also tendered the transcript of the hearing before Slattery J, who was the primary judge, on 26 and 27 February 2018 (Ex 3).

The proceedings the subject of the notice of motion

9. The background to the proceedings is set out in the judgment of White JA in the Court of Appeal at [15]-[19]. Relevantly for present purposes:

1. The applicant owns a property in Ellesmere Road, Gymea Bay, being Folio Identifier 4/14551 and referred to in the proceedings as Lot 4. The respondents owned another property in Ellesmere Road, Gymea Bay, which was referred to in the proceedings as Lot 1153. Both properties lie to the east of Ellesmere Road, Gymea Bay. The applicant’s Lot 4 adjoined Lot 1153 to the north-east.

2. The applicant’s property was subject to a number of easements in favour of neighbours who owned properties below and further to the east of his property that have frontages to Gymea Bay, allowing the neighbours to travel in a generally northerly direction on a common driveway up to Ellesmere Road.

3. Lot 1153 was a large parcel of land, being approximately 4,550m² in area, sloping very steeply to the waterfront. The respondents had obtained approval for the subdivision of Lot 1153 into two lots (Lot 1150 and Lot 1151). The proposed Lot 1151 was located at the top of the block. There is a house on that part of the property, with access to Ellesmere Road by right of carriageway on the north-western side of the lot.

4. Registration of the plan of subdivision of Lot 1153 was dependent on the respondents obtaining a right of way for access to Ellesmere Road, as it was not topographically feasible to provide such access via the existing right of carriageway to the north-west of Lot 1153.

10. In December 2014, the respondents commenced proceedings seeking an easement over the applicant’s property, pursuant to s 88K of the Conveyancing Act1919 (NSW), for vehicular and pedestrian access for the benefit of what was then the unsubdivided Lot 1153: at [20]. In November 2015, the applicant and respondents executed a Heads of Agreement, which is extracted in the reasons of White JA. The Heads of Agreement included the following term:

“2.    Upon execution of a Deed of Settlement, the Defendant [i.e., the applicant] grants to the Plaintiff [i.e., the respondents] an easement for services and carriageway of 3m width from the Eastern Boundary of Lot 4 DP 14551 (Lot 4), known as 188 Ellesmere Road, Gymea Bay (the Right of Way) but such grant is not to be registered by the Plaintiff for 12 months from the date of the execution of the Deed of Settlement or such lesser time as the Defendant agrees.”

11. On 14 November 2016, as was contemplated in the Heads of Agreement, the parties entered into a Deed of Settlement and Release (Deed). Clause 2.6 of the Deed provided:

“2.6 On the execution Date of this Deed, RC will give to CH and PH a signed Transfer Granting Easement for services and carriageway of three (3) metres in width from the eastern boundary of Lot 4 (as set out at Schedule B of this Deed).”

12. In his written submissions on the notice of motion, the applicant stated that he had been aware of s 88(1) “and relied upon the termination of the easement in agreeing to grant the easement to the respondents”; and he referred to an email he sent to his lawyers “just days” after the deed of settlement in which he said that “[e]ven if registered, their easement is in trouble under section 88(1)(a) of the Conveyancing Act given the vague description of the land benefited in the Transfer and Annexure B”.

13. As required under the Deed, the applicant provided a signed Transfer Granting Easement form to the respondents who lodged it with Land and Property Information (LPI). When LPI raised requisitions with that document, the respondents made handwritten changes, without the applicant’s knowledge or consent, and the easement was registered (Registered Transfer).

14. In 2017, the applicant commenced proceedings in the Supreme Court to have the Registered Transfer removed from the register under s 138 of the Real Property Act 1900 (NSW). He contended that no registrable transfer was required under the Deed because it did not sufficiently identify the land to be conveyed, contrary to s 88(1)(a) of the Conveyancing Act. The respondents, in turn, filed a cross-claim, contending that even if that particular instrument were removed from the register, the Deed entitled them to an easement binding the applicant’s successors and sought a declaration or order that the instrument be properly lodged.

15. In Campbell v Hamilton [2018] NSWSC 808, the primary judge concluded that the Transfer Granting Easement complied with s 88(1)(a) of the Conveyancing Act. His Honour also concluded that in any event the respondents would be entitled to specific performance to require execution of an instrument in a form that clearly identified the part of the land which had the benefit of the easement, so as to bind the applicant’s successors in title.

The Court of Appeal

16. On 4 September 2018, the applicant filed a notice of appeal. The applicant was represented on the appeal by senior and junior counsel. The written submissions filed on his behalf on 25 October 2018 described the issue on the appeal as whether the Transfer Granting Easement that was in Schedule B to the Deed clearly indicated the land to which the benefit of the easement was appurtenant within the meaning of s 88(1)(a) of the Conveyancing Act. The written submissions filed on behalf of the respondents contended that Schedule B of the Deed complied with s 88(1), and in any event it was clear on the proper construction of the Deed that the easement the applicant granted to the respondents was intended to be enforceable against the applicant’s successors in title.

17. The appeal was heard on 6 December 2018 by Beazley P, Gleeson JA and White JA. The applicant’s present complaint that he was denied procedural fairness focused on an exchange between White JA and Mr Alexis SC, who was briefed by the applicant, on pages 6-7 of the transcript. To give more context, the following extract starts from page 5 (correcting minor and obvious transcription errors):

“Beazley P: What was intended to be granted?

Alexis: An easement.

White JA: Not a personal licence?

Alexis: An easement.

White JA: That was what the parties intended to be granted by the deed?

Alexis: Yes. It couldn’t be construed any other way because of the provisions that I’m about to take the Court to.

Beazley P: Isn’t an easement binding on successors in title?

Alexis: If it complies with the statutory requirements, yes.

White JA: If it doesn’t comply with the statutory entitlements is it an easement?

Alexis: It’s still an easement.

White JA: It is?

Alexis: Of course it is.

White JA: When you say, ‘of course’, I thought an easement as distinct from a contractual licence was a property right that bound successors in title to the servient and dominant tenements. That’s what distinguishes an easement from a licence.

Alexis: Your Honour, this is one of a number of matters that seems to have informed the primary judge’s conclusion that there was a material difference between an easement on the one hand and what was described as a personal licence or a personal right on the other, which is said to not run with the land. In our respectful submission, that overlooks s 88, because one still has a valid and enforceable easement inter partes, even if the default position under s 88(1) applies. So that if there was an easement granted by an instrument, which we have here, that did not clearly indicate the land to which the benefit of the easement or restriction is appurtenant, there is still an easement, it still runs with the land but it operates inter partes. It doesn’t operate against a party who was not a party to its creation unless the statutory requirement is complied with.

White JA: Would you take issue with this reasoning, that the essence of an easement is that it is a species of property right, appurtenant to land which confers rights over neighbouring land. Two parcels of land are traditionally and helpfully called the dominant tenement and the servient tenement. The effect of the rights being proprietary in nature is that they run with the land, both for the benefit of successive owners of the dominant tenement and by way of burden on the successive owners of the servient tenement. By contrast, many personal rights do not generally have those characteristics. Would you accept that or not.

Alexis: I would, subject to the application of s 88(1). Because all of those characteristics to which your Honour has referred would apply if s 88(1) in New South Wales was complied with. But if it is not complied with, then that part of what your Honour put to be about successors in title would be inapplicable. If, as I apprehend, your Honour has referenced your Honour’s proposition from Bradbrook and Neave --

White JA: It was actually the UK Supreme Court decision last month in Regency Villas Title.

Alexis: I stand to be corrected on this, your Honour. But I don’t believe that there is an equivalent in s 88(1) in play in that jurisdiction. Similarly, other conveyancing statutes in other states in Australia don’t seem to have a provision like this. One therefore has to be careful to look at broad matters of principle like that and draw a clear line of demarcation between an easement on the one hand and a personal licence on the other. Because one can still have an easement that operates and runs with the land, binds the parties to its creation but doesn’t have the effect of binding successors in title unless s 88(1) is complied with. That’s the short point in this case.”

18. In dismissing the appeal, White JA agreed with the primary judge, substantially for the reasons the primary judge gave, that the Transfer Granting Easement in Schedule B to the Deed did not fail to indicate clearly the land to which the benefit of the easement was appurtenant: at [50]. After restating this conclusion at [55], his Honour stated at [56]:

“But if it had failed to do so, Mr Campbell would still not have been entitled to the relief he sought. When the deed as a whole is construed having regard to the objective matrix of facts in which it was entered into, notably the Heads of Agreement, it is clear that the parties’ intentions, as objectively indicated, was that the easement to be created should enure both for the benefit of the Hamiltons and their successors in title to Lot 1150 once created, and should bind both Mr Campbell and his successors in title. Clause 19.1 of the Deed provides that the Deed is an entire agreement of the parties and supersedes any prior understandings, negotiations or agreements. This does not mean that [the] Heads of Agreement is not an objective fact that forms part of the surrounding circumstances which provide the context and identify the purpose of the Deed.”

19. White JA had earlier observed, by reference to cl 2 of the Heads of Agreement (see [10] above), that the applicant had agreed that on execution of the Deed he would grant the respondents “an easement” for services and carriageway. His Honour considered that, as expressed in the Heads of Agreement, the parties’ intention was that the applicant would grant an easement that would run with the land, noting that the agreement was made in the context of the respondents seeking registration of a plan of subdivision: at [28]. Although the Heads of Agreement did not identify what would be the dominant and servient tenements of the easement to be created (to be addressed in the Deed), his Honour stated that “[i]t could not be expected that the plan of subdivision would be registered, or if it were, someone would purchase a subdivided lot, if access to Ellesmere Road were dependent upon a right of carriageway and an easement for services across Lot 4, and those rights would lapse upon Mr Campbell’s selling Lot 4”: at [29].

20. In reaching this conclusion, his Honour referred to what he described as a “characteristic feature” (i.e., not an essential requirement) of an easement at general law, namely that “it is a proprietary, not a personal, right and will therefore bind successors to the servient land and enure for the benefit of successors to the dominant land”: at [21], quoting from Gale on Easements (19^th ed, 2012, London: Sweet & Maxwell) at [1-01]. His Honour also extracted, at [22], the passage from Regency Villas Title Ltd v Diamond Resorts (Europe) Ltd [2019] AC 553; [2018] UKSC 57 (“Regency Villas”) that he had put to Mr Alexis SC during the hearing. Consistently with the submission that senior counsel made at the hearing, his Honour observed that s 88 of the Conveyancing Act imposed a qualification on the circumstances in which an easement will bind successors in title to a party to the creation of the easement but that it does not alter the ordinary meaning of an “easement”: at [24].

21. His Honour noted the applicant’s reliance on the definition of easement in Bradbrook and Neave’s Easements and Restrictive Covenants (3^rd ed, 2011, LexisNexis Butterworths) at [1.2] as demonstrating that it was not essential to an easement that it bind successors in title:

“An easement may be defined to be a privilege without profit, which the owner of one neighbouring tenement hath of another, existing in respect of their several tenements, by which the servient owner is obliged ‘to suffer of not to do’ something on his own land, for the advantage of the dominant owner.”

White JA considered that this definition did not relevantly assist because it did not distinguish between an easement and a contractual licence, and the Heads of Agreement was specifically directed to creation of the former: at [25]-[27].

Application for special leave to appeal

22. On 11 April 2019, the applicant, representing himself, filed an application for special leave to appeal from the judgment of the Court of Appeal. The proposed grounds of appeal included that the Court erred in determining that, by definition, an easement runs with the land. The applicant also alleged that the Court erred in concluding that the land benefited by the easement was clearly indicated for the purposes of s 88(1) of the Conveyancing Act. On 19 June 2019, the High Court refused the application for special leave.

The applicant’s arguments on the notice of motion

23. The applicant prepared written submissions filed on 10 March 2025. He also provided the Court with a copy of the notes that he prepared for the hearing on 26 August 2025 (which we treated as an aide memoire). The applicant addressed his notes orally at some length.

24. The focus of the applicant’s submissions was the substantive error that he contended affected the Court of Appeal’s judgment, namely, that it involved an underlying and incorrect assumption that easements must run with the land, when that is not necessarily the case. His submissions in this respect reagitated arguments he advanced in support of the application for special leave to appeal. The applicant referred to authorities such as Re Ellenborough Park [1956] 1 Ch 131 and submitted that running with the land was not one of the characteristics of easements identified in those cases. He relied on materials published on the websites of the Registrar-General and NSW Land Registry Services to the effect that an easement may “be limited in time or be determined by a certain event as specified in the instrument” (our emphasis), with other material referring to such specification as a sunset clause. The applicant also relied on cases in which courts had granted temporary easements, and other cases involving the termination of easements.

23. The applicant contended that the asserted incorrectness of the “notion” introduced by his Honour, though going to the merits of the appeal decision, was relevant to whether there had been a denial of procedural fairness because the complexity of the issue was such that there had not been a reasonable opportunity for his counsel (with the benefit of instructions from the applicant on the issue) to address submissions on this.

24. The applicant submitted that White JA approached the hearing of his appeal having done his own research on this issue and introduced the “notion” that an easement runs with the land by reference to the decision in Regency Villas. He submitted that his Honour did this without notice and did not allow him or his representatives sufficient time to consider and rebut the argument. The applicant relied primarily on the passage of the transcript extracted above, to which he went several times during his oral submissions, but also pointed to other exchanges which he submitted indicated preconceptions on the part of the Court that an easement must run with the land by definition. The applicant submitted that, having denied him procedural fairness, the Court then made its decision having regard to that notion and in a manner that was plainly influenced by it.

25. The applicant submitted that the notice of motion should be considered despite the passage of time since judgment was given because of the extent of the incorrectness and the denial of procedural fairness. Although the current notice of motion sought the same relief as the previous (discontinued) notice of motion filed in 2020, the applicant submitted that he made the earlier application before he became aware of material that indicated that the respondents knew, from December 2017, that easements do not necessarily run with the land. He relied in this regard on correspondence from December 2017 between the respondents’ solicitor and a surveyor, and between the respondents’ solicitor and a lawyer within NSW Land Registry Services, which were produced in answer to a notice to produce. The applicant also raised a number of personal matters which contributed to the delay.

26. The applicant’s description of the Court of Appeal’s judgment as entered irregularly was presumably with a view to invoking the court’s power in r 36.15(1) of the UCPR, which provides:

“A judgment or order of the court in any proceedings may, on sufficient cause being shown, be set aside by order of the court if the judgment was given or entered, or the order was made, irregularly, illegally or against good faith.”

29. The applicant may also have been seeking to invoke s 63 of the Civil Procedure Act, which provides:

63 Directions with respect to procedural irregularities

(1)    This section applies to proceedings in connection with which there is, by reason of anything done or omitted to be done, a failure to comply with any requirement of this Act or of rules of court, whether in respect of time, place, manner, form or content or in any other respect.

(2)    Such a failure—

(a)    is to be treated as an irregularity, and

(b)    subject to subsection (3), does not invalidate the proceedings, any step taken in the proceedings or any document, judgment or order in the proceedings.

(3)    The court may do either or both of the following in respect of proceedings the subject of a failure referred to in subsection (1)—

(a)    it may, by order, set aside the proceedings, any step taken in the proceedings or any document, judgment or order in the proceedings, either wholly or in part,

(b)    it may exercise its powers to allow amendments and to make orders dealing with the proceedings generally.

(4)    The court may not take action of the kind referred to in subsection (3) (a) on the application of any party unless the application is made within a reasonable time and, in any case, before the party takes any fresh step in the proceedings after becoming aware of the failure.

30. We have considered the other provisions to which the applicant referred in his written submissions, namely, rr 36.16 to 36.18 of the UCPR and ss 56 and 73 of the Civil Procedure Act, but they do not provide any conceivable basis on which to ground the relief that the applicant seeks in the present circumstances.

31. The applicant’s dissatisfaction with the substantive result in the Court of Appeal was a matter that he properly raised in an application for special leave. The High Court having refused that application, the present notice of motion provides no occasion to revisit the issues on the appeal. As the terms of the provisions set out above make plain, the powers of the Court to intervene after a judgment has been entered are very confined, reflecting what the High Court in Burrell v The Queen (2008) 238 CLR 218; [2008] HCA 34 described at [15] as “[a] central and pervading tenet of the judicial system … that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances” (quoting D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12 at [34]).

32. Section 63 only applies to specific requirements of the Civil Procedure Act which are capable of giving rise to an identifiable irregularity, as opposed, for example, to breaches of the general duty under s 56(3): Perpetual Trustees Australia Ltd v Heperu (No 2) (2009) 78 NSWLR 190; [2009] NSWCA 387 (“Heperu”) at [30] (Allsop P, Campbell JA and Handley AJA). The applicant has not identified any specific requirement of the Civil Procedure Act or the UCPR with which there was a failure to comply in the appeal proceedings so as to engage the section. In any event, an application under the section is required to be made “within a reasonable time”: s 63(4). On no view was the present application made within that timeframe, even taking into account the matters raised by the applicant as contributing to the delay.

33. As to r 36.15(1) of the UCPR, its focus is on the judgment or order being attacked and whether it was “given … entered, or … made” irregularly, illegally, or against good faith; the focus being on the steps and not the merits of the decision: Heperu at [16]. Assuming in his favour for present purposes that a denial of procedural fairness could constitute an irregularity of that nature, the applicant has not demonstrated any such denial.

34. As we have noted above, White JA (Beazley P and Gleeson JA agreeing) dismissed the applicant’s primary contention on the appeal that the instrument creating the easement did not “clearly indicate” the land to which the easement was appurtenant within the meaning of s 88(1)(a) of the Conveyancing Act. His Honour also concluded that in any event, on the proper construction of the Deed, the easement that the applicant granted was binding on his successors in title. It was in respect of the construction of the Deed that his Honour considered it relevant that a general characteristic of an easement is that it runs with the land. However, what was determinative was his Honour’s construction of the Deed as disclosing the intention of the parties that the easement was of that character.

35. In the course of oral argument on the appeal, his Honour raised the issue of general characteristics of an easement with Mr Alexis SC. Consistently with the seniority, knowledge and experience of the applicant’s senior counsel, the transcript reveals that the underlying proposition did not take Mr Alexis by surprise. Indeed, senior counsel demonstrated his familiarity with the proposition by positing, in the response he made to White JA, that his Honour had referenced the proposition from Bradbrook and Neave (which White JA also ultimately cited in his reasons). Senior counsel gave a clear answer to the question without indicating, either immediately or subsequently, that he needed any opportunity to reflect on the question or its implications.

36. There was no denial of procedural fairness, let alone a denial of procedural fairness that would warrant this Court exercising the power for which r 35.15(1) makes provision, more than six years after the Court handed down its judgment.

Conclusion

37. The applicant’s notice of motion filed on 25 February 2025 will be dismissed with costs. Although the respondents sought an order for indemnity costs, in the circumstances of this case we are not disposed to make that order.

38. The Court notes that the applicant filed a notice of motion on 25 June 2025 to vacate an earlier hearing of the matter, which was listed for 26 June 2025. The applicant was not present in Court on that date and the Court vacated the hearing without the notice of motion being moved on. The notice of motion was thus superseded and it should be dismissed. The respondents submitted that the costs of that motion should be costs in the cause. We accept that submission.

39. Accordingly, the Court makes the following orders:

1. The notices of motion filed by the applicant dated 25 February 2025 and 25 June 2025 are dismissed.

2. The applicant is to pay the respondents’ costs of both notices of motion.

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Decision last updated: 03 September 2025