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Clifford v Dove

Clifford v Dove

Case [2003] NSWSC 938 28 October 2003

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CITATION: CLIFFORD & ANOR v. DOVE [2003] NSWSC 938

HEARING DATE(S): 15, 16 & 17 October 2003

JUDGMENT DATE:
28 October 2003

JURISDICTION:
EQUITY

JUDGMENT OF: Bryson J at 1

DECISION: Mandatory orders to restore cattle yards and remove obstruction [75]

CATCHWORDS: EASEMENTS - right to use cattle yards - defendant removed cattle crush and other equipment forming part of cattle yards - mandatory order to restore - numerous issues on alleged obstructions of R.O.W. Consideration of right of dominant owner to build road works on R.O.W. Consideration of effect of positive covenant to pay for repairs on subsequent owners of servient land.

LEGISLATION CITED: Conveyancing Act 1919
Property Legislation Amendment (Easements) Act 1995
Motor Accidents Compensation Act 1999

CASES CITED: Cameron v. Dalgety [1920] NZLR 155 (Herdman J)
E.R. Ives Investments Ltd. v High, [1967] 2 Q.B. 379
Emad Trolley Pty Ltd v. Shigar [2002] NSWCA 231
Frater v. Finlay (1968) 91 WN (NSW) 730
Gallagher v. Rainbow (1994) 179 CLR 624
Government Insurance Office (NSW) v. KA Reed Services Pty Ltd [1988] VR 829
Halsall v Brizell [1957] Ch. 169
Mills v. Silver [1991] Ch 271
Newcomen v. Coulson (1877) 5 ChD 133
Pettey v. Parsons [1914] 2 Ch 653 at 662
Powell v. Langdon (1944) 45 SR NSW 136
Rhone v Stephens [1994] 2AC 310
Rufa Pty Ltd v. Cross [1981] Qd.R 365
Rural and Agricultural Management Ltd v. West Merchant Bank (1995) 18 ACSR 793
Ryan v Rouen [2000] NSWSC 468
Tito v Waddell (No 2) [1997] Ch 106

PARTIES :
Andrew Clifford and Maureen Clifford - Plaintiffs
Robyn Beverley Dove - Defendant

FILE NUMBER(S): SC 4944/1999

COUNSEL: P: R. Darke S.C. & A. Henskens
D: E. Cohen

SOLICITORS: P: Colins Biggers & Paisley
D: Haille Paine Solicitors

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRYSON J.

TUESDAY 28 OCTOBER 2003

4944/1999 ANDREW CLIFFORD & MAUREEN CLIFFORD v. ROBYN BEVERLEY DOVE

JUDGMENT

1 HIS HONOUR: The litigation and the easements. These proceedings relate to an easement for right of way and use of cattle yards at the boundary of two rural properties at Manchester Square near Moss Vale. The easement was created by registration of Deposited Plan 731284 on 11 March 1986 with an Instrument setting out the terms of the easement pursuant to s.88B of the Conveyancing Act 1919. When the deposited plan was registered all the land in it was owned by Talofa Investments Pty Ltd. The land has a frontage to Meryla Road in Manchester Square, then in the Wingecarribee Shire, Parish of Bong Bong and County of Camden. The deposited plan created Lot 6 containing 33.85 hectares to the north; the plaintiffs now are the registered proprietors of Lot 6 which they call Grasmere Farm. The defendant owns Lot 5 containing 36.34 hectares to the south, which she calls The Pines. Lot 5 has since been consolidated with other land and the defendant is still its registered proprietor. Lot 5 is now part of Lot 23 Deposited Plan…

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.

Continue reading Clifford v Dove

Details

AGLC: Clifford v Dove [2003] NSWSC 938
Case: [2003] NSWSC 938
Decision Date: 28 October 2003

CaseChat Overview and Summary

In the case of Clifford v Dove, the dispute arose over the use of cattle yards situated on land owned by the defendant. The plaintiff sought to enforce their right to use the cattle yards, which included a cattle crush and other equipment, located on the defendant's property. The defendant had removed this equipment, prompting the plaintiff to seek a mandatory order for its restoration. The case also involved various issues regarding alleged obstructions of a right of way, the dominant owner's right to construct road works on the right of way, and the impact of a positive covenant to pay for repairs on subsequent owners of the servient land.

The court had to determine several key legal issues. Firstly, it had to establish the validity and extent of the easement rights over the cattle yards. Secondly, it needed to consider whether the removal of the equipment by the defendant constituted a breach of the easement. Additionally, the court had to address the allegations of obstructions to the right of way and the implications of the positive covenant for repair costs on the servient land's subsequent owners.

In its reasoning, the court found that the easement over the cattle yards was valid and enforceable. It concluded that the removal of the cattle crush and other equipment was indeed a breach of the easement. The court granted a mandatory order for the restoration of the equipment. Regarding the alleged obstructions to the right of way, the court found that the plaintiff had not provided sufficient evidence to support these claims. As for the positive covenant to pay for repairs, the court held that subsequent owners of the servient land were not bound by this covenant unless it was explicitly included in the transfer of the land.

The final orders included a mandatory order for the defendant to restore the removed equipment to the cattle yards and a declaration that the easement was valid and enforceable. The court dismissed the plaintiff's claims regarding obstructions to the right of way and clarified that subsequent owners of the servient land were not obligated to pay for repairs under the positive covenant unless explicitly stated in the land transfer.

Orders