Clifford v Dove

[2003] NSWSC 938

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 1010336 which was registered on 11 February 2000. The defendant became the registered proprietor of Lot 5 soon after registration of the plan, probably in 1986. The defendant owned land nearby, referred to as Lot 2, from 1982 onwards; after purchasing Lot 5 in 1985 she sold Lot 2. The plaintiffs purchased Lot 6 and became its registered proprietors in 1998. None of the parties was a party to the s.88B Instrument, so none of them has given a personal covenant to comply with the terms of the easement. The effect of registration of this instrument was to create two easements: each lot is the dominant tenement in one easement, and part of it within the Right of Way on the deposited plan is the servient tenement of the other easement. The plaintiffs sue to enforce the easement of which Lot 6 is the dominant tenement and the part of Lot 5 within the site of the easement is the servient tenement.

2 The site of the easement shown on the deposited plan follows an irregular course from Meryla Road on the east for almost a kilometre westward, ending in the middle ground of the two lots and not reaching another boundary. The boundary between the two lots runs generally but not exactly down the middle; the widths are not regular. Near the Meryla Road boundary the land subject to the easement is wider, about 80 metres wide. When the defendant bought Lot 5 it was improved with cattle yards, a fodder and machinery shed, an all-weather road and fencing. In 1990 she built a house at the end of the all-weather road, and she still occupies that house. An aerial photograph made in 1991 and produced by Mr Surveyor Gill gives a good general indication of the layout of Meryla Road, the formed road, the house and the parties’ land, but unfortunately does not show sufficient detail of the cattle yards or the arrangement of fences.

3 The defendant has made preparations to build a new house on another site away from the easement, and has constructed a different private road 1.2 kilometres long from Meryla Road to the proposed site of the new house, although she has not yet constructed a new house.

4 The easement can be closed off from Meryla Road by a gate near the road boundary. There is a second gate approximately 135 metres from the entrance gate. A third gate was located 532 metres from the entrance gate.

5 The all-weather road already existed before the deposited plan laid out Lot 5 and 6, and the easement was laid out by the surveyor to accommodate the road. By 1988 the boundaries of the right of way with the remaining parts of Lots 5 and 6 were fenced off on the north and south sides, with gates. The defendant gives dimensions, apparently based on the deposited plan, and says that the easement is 738 metres long, averages about 24 metres wide and contains approximately 18114 sq metres. The formed all-weather road is 530 metres long and about 3 metres wide. A further 200 metre length of land subject to the right of way had not, by 1998, had any work done on it to create a surface.

6 The operative parts of the s.88B Instrument are as follows:

SCHEDULE

INSTRUMENT SETTING OUT THE TERMS OF EASEMENTS AND RESTRICTIONS AS TO USER INTENDED TO BE CREATED PURSUANT TO SECTION 40B OF THE CONVEYANCING ACT.1919

Lengths are in metres Sheet 1 of 1 Sheets

PART 1

Plan DP731284 A Subdivision of Lot DP 628205
Covered by Council Clerk’s
Certificate No

Full Name and Address of Telofa Investments Pty Limited of the Proprietor of the Land Toonpoon Road, Bundaroo

1. Identity of Easement
Firstly referred to in Right of Way variable width
abovementioned Plan

Shedule of Lots etc. affected

Lots Burdened Lots, Name of the Road or Authority Benefited
Lots 5 and 6 Lots 6 and 5

PART 2

1. Terms of Easement Firstly Referred to in the abovementioned Plan
Right of Carriageway which shall without limiting the generality of the meaning of that term imported by the Conveyancing Act include the right to bring hold and move cattle horses and sheep and other lifestock over such Right of Way and the right to use in common with the owners of Lots 5 and 6 the paddocks and cattle yards located at Meryla Road entrance of that Right of Way PROVIDED THAT:

(a) The owners of Lots 5 and 6 shall maintain and keep in good repair and sound condition the Right of Way, the fences adjoining the Right of Way and the cattleyards, the cost of repair and maintenance being borne equally between the owners of Lots 5 and 6 AND the owners covenant not to pull down or remove any fences without replacing them with cattle-proof fences of equal quality
(b) That if the owner of one Lot shall default in duly performing or observing the above conditions the other owner shall be entitled to rectify the default at the cost of the defaulting owner if he shall give the defaulting owner fourteen (14) days prior written notice of his intention to do so.

NAME OF PERSON empowered to release vary or modify the Right of Way of variable width referred to in the abovementioned plan:

TALOFA INVESTMENTS PTY LIMITED whilst it owns any lot in the subdivision and thereafter the owners for time being of Lots 5 and 6.

7 The reference to right of carriage way extended the terms of the easement so as to incorporate Pt.1 of Schedule 8 to the Conveyancing Act 1919.

8 At the time of the registration of the deposited plan cattle yards were located at the Meryla Road entrance. They consisted of wooden and barbed wire fences and structures and also of metal gates, a cattle crush, a calf cradle and other metal equipment, all of which together form the cattle yards referred to in the s.88B Instrument. Both the wooden and the metal equipment were fixtures and on 11 March 1986 all operated together to form the cattle yards. Taken together they were suitable for operations of yarding, loading and unloading cattle and for handling cattle in pastoral management operations. It would not have been possible to carry on effective pastoral operations with cattle unless there were such yards, and there were no others elsewhere on Lots 5 and 6.

9 Although there have been other claims at earlier stages in the litigation, the claims in the Amended Summons which was filed when the hearing began on 15 October 2003 were to this effect:

1. A mandatory order that the defendant reinstate the cattle yards.
2. A mandatory order that the defendant reinstate the fence and gate which at one time extended across the right of way and assisted in management of cattle.
3. An order that the defendant remove an electric fence and surround posts around banks of hedge plants and soil on the site of the right of way.
4.to 6. Consequential orders including an order authorising the plaintiffs to perform works if the defendant does not, and damages.

10 At one point there was a claim for removal of sculpture which the defendant caused to be erected near the road frontage but this claim was not pressed.

11 Interference with the rights of a dominant owner to the enjoyment of an easement is the tort of Nuisance. There must be real substantial interference with the enjoyment of the right conferred by the easement; see Powell v. Langdon (1944) 45 SR NSW 136 at 139, citing authorities including Pettey v. Parsons [1914] 2 Ch 653 at 662. Those cases dealt with obstruction of rights of way, but the same principle applies to interference with the easement for use of the cattle yards.

Conflict about the plaintiffs’ road works.

12 The formed road surface on the site before the deposited plan was registered in 1986 appears to have been constructed by bringing in and compacting stone or other road base material. This formed a readily trafficable all-weather road surface for the first part of the right of way. The defendant built her house near the end of this work: her house is served by the formed road surface. The area affected by the easement continues for a further distance west, the defendant says for about 200 metres. Until the plaintiffs bought Lot 6 no work had been carried out to form a trafficable surface there.

13 A conflictual element entered into communications between the parties at a very early stage. Before they purchased Lot 6 the plaintiffs carried out several inspections and on one occasion met the defendant who said to the effect “The right of way was subject to certain rules, one being that any alteration had to be agreed to by both parties.” She went on to say that she would not agree to any changes. Mr Clifford said to the effect that the plaintiffs’ only intention was to finish the last section of road along the right of way. He asked the defendant if she would allow the plaintiffs to do this and she replied to the effect “No, I would not give you permission.”

14 In taking the position that any alteration had to be agreed to by both parties the defendant expressed a point of view to which she still adhered in evidence. This view appears to be based upon the last words in the operative part of the s.88B Instrument, relating to the power to release vary or modify the Right of Way. The words refer to varying the terms on which the easement was created. Of course, the words do not at all refer to or govern carrying out works or making alterations within the area affected by the easement; this would be plain to any reasonable reader. The defendant maintained that she had legal advice which supported her reading, but the legal advice which has been put into evidence does not do so. The point of view underlying Mrs Dove’s claim that any alteration, including surfacing the last section of road, had to be agreed to by both parties is quite unreasonable and I do not accept that she ever has genuinely believed that it is the true position. In my finding, her behaviour in expressing and maintaining this position is part of a combative stance which she deliberately adopted towards the plaintiffs in all matters relating to the easement from her first dealings with them.

15 The conversation at the inspection led the plaintiffs to obtain written legal advice from their lawyers dated 23 July 1998 which supported the view that they were entitled to maintain the last section of the right of way. The defendant sent the plaintiffs a letter of 21 July 1998 stating her position that no changes within the right of way could be undertaken without the consent of the owners of both lots. The terms of the letter show that she did not wish there to be an all-weather road constructed by the plaintiffs. The plaintiffs wrote to the defendant, also on 23 July, sent her a copy of their legal advice, and maintained the position that they were entitled to maintain the area as all-weather access. They asked her to agree, in which case they would pay 100 percent of initial maintenance costs. They invited her to commence proceedings to restrain them if she wished to do so. She did not do so.

16 Soon after the plaintiffs’ purchase was settled Mr Clifford visited the property and found that the defendant had laid turf on the area where the plaintiffs proposed to carry out work. She had also put sprinkler pipes in the area where the turf was laid, and had padlocked a gate so that access was impeded. The easement was cordoned off near the entry gate, and a gate further on, to the west of the defendant’s house, was padlocked. Mr Clifford removed the padlock with bolt cutters, as he was entitled to do, and drove over the right of way, including the area where the turf and sprinkler pipes had been laid. Mr Clifford drove over the naturally grassed section where he could, but when entering and exiting the section where the turf was laid he necessarily had to drive over the turf and the sprinkler equipment.

17 The defendant sought to explain in evidence the plaintiffs’ finding the gate locked against them when they first arrived by saying that she had left a key with an agent in town, and that there was a notice informing the plaintiffs where they could get a key. This was in no way an explanation or excuse for presenting a locked barrier to their use of their right of way.

18 Mr Clifford asked the defendant why she had locked the plaintiffs out of their own property, and she said to the effect that she did not want anyone coming from within the property to damage the turf. This response made little sense as the effect of locking the gates was to impede entry from outside the property. Mr Clifford took a number of photographs. He wrote to the defendant on 21 August 1998 recording the events of the day. He demanded that she should not lock the gate again or impede access, and threatened court action to obtain an injunction.

19 Photograph B Exhibit 2 illustrates the pen or pound to which I refer later, including the eastern gate and the post on which it swung, and the ground surface in the state they were in before the plaintiffs constructed the formed surface. Wheel tracks are clearly visible. A further illustration of this area at about the same time is in Exhibit H which shows turf, an irrigation pipe and the relationship of the turf and pipe to the area traversed by a vehicle.

20 The defendant maintained in her evidence that she had laid the turf to repair damage to the surface caused by the passage of a heavy vehicle while Lot 6 was owned by Doctor Fuller the previous owner. She denied, or affected to deny that the turf was placed in wheel tracks which had been formed by the passage of vehicles. The photographs taken by Mr Clifford make it perfectly clear – optically evident – that the turf had been laid in wheel tracks. As there was a right of way it was quite appropriate that there were wheel tracks. The defendant took a position which appeared to be a development of the position that there could be no alteration of the area affected by the easement unless she had consented to it, that it was not appropriate for vehicles to pass over the right of way or for there to be wheel tracks. Her position was quite wrong, factually and legally, and entirely obviously so, and the only effect of putting the turf and the irrigation pipes in place and locking the gate would have been to greet the new owners with an initial indication that exercise of their rights would be contested. When Mr Clifford drove over the area where the turf and the pipes were laid, he was fully entitled to do so, and it was obvious and must have been expected that he would do.

21 After this unfortunate beginning, the relationship between these neighbours has continued in the combative direction to which the defendant inclined it. From time to time the defendant has continued to employ intendedly obstructive action, groundless complaint and unreasonable opposition. This continued even during the hearing when counsel contended on the defendant’s behalf that the appropriate course for the plaintiffs was to find some other way of getting access to their property and not use the easement.

Advice available to the defendant and its influence on her attitudes

22 It was the defendant’s evidence that “It was always my desire that the easement would remain in the same condition as it was at the time that I purchased the property and I obtained a written legal advice as to my rights in relation to the easement in 1995.” She says she gave a copy of the advice to Mr Clifford before he purchased Lot 6, and that he said that the advice was wrong. The advice is in evidence, and on a fair reading it does not bear out the view expressed by the defendant – Exhibit E letter Haille Paine to defendant 5 July 1995. The advice included the following passages:

10. Can Lot 6 change any part of the right of way without the other’s consent? Answer: No.
12. If Lot 6 was to begin to undertake radical changes to the right of way without my consent, how do I as the owner of Lot 5 stop it? Answer: You would firstly notify Lot 6 to cease making the changes that you do not consent to and indicate to Lot 6 that if it did not stop, you would make application to the Court for an injunction.

23 The advice in Exhibit E is perhaps open to the defendant’s reading, but only on a very strained reading, and not to the reasonable reader. Elsewhere the letter of advice deals with what could be done “… [i]f Lot 6 was to begin to undertake radical changes to the right of way without my consent …” and the letter of advice also went on to make it quite clear that there was a right to drive heavy trucks, heavy machinery and all vehicles and animals on the right of way. To any reasonable reader the advice relates to radical changes and does not deal with works which fulfil the basic purpose of a right of way.

24 A letter, also from Haille Paine, to plaintiffs’ solicitors on 15 October 1998 says among other things “You will be aware that your client has constructed a road over my client’s and your client’s land. We have now received counsel’s advice that your client is permitted to do this. However, we have also been advised of the importance of clarifying future obligations concerning maintenance of the right of way on which your clients have constructed the abovementioned road.” The letter went on to deal with maintenance of the road which had just been constructed, and other subjects. Even if it had been the case that the defendant had believed, before October 1998 that the plaintiffs were not authorised to construct the road surface it does not seem to me to be possible that that belief could have continued after obtaining counsel’s advice as referred to. In her oral evidence the defendant affected not to accept this, and I see this as confirmation of other indications of her unreliability as a witness.

25 The defendant went on in her affidavit to express concern that Mr Clifford intended (her word was “threatened”) to build an all-weather road over the remaining 200 metres. She said “I did not wish to pay for such a road or to pay for its maintenance as I did not need the road … I did not want to be responsible for the building and maintenance of a road which I did not need and I did not want a road coming near the house I had built when previously I had only the grassed area.” The attitude so expressed is unreasonable, plainly so on its face as the defendant must have known. The fact that it was reasonable to have an all-weather road to facilitate use of the easement was clearly demonstrated by the fact that an all-weather road was already there and the defendant used it, and the provisions of the s.88B Instrument relating to maintenance related to the whole of the easement. If the all-weather road was extended, the plaintiffs would have an entitlement to use the whole of it, and an obligation to maintain it, irrespective of the intensity of the defendant’s wish to use it. To my mind it is plain that from the first the defendant saw that use of the easement by the plaintiffs and extension of the road works would increase her maintenance obligation and she set about discouraging them from proceeding in that way by whatever means were available. As the s.88B Instrument expressed maintenance obligations for the plaintiffs over the much longer stretch of road which she used, she cannot fail to have understood that the position she took was quite wrong and was altogether unreasonable.

Where the new road is.

26 In September 1998 the plaintiffs brought a contractor onto the property and the contractor constructed a formed all-weather road surface along the easement to its end (and it seems beyond). Except for a short length where the newly constructed surface joined the earlier formed road surface, the new road stood wholly on Lot 6, on the part of Lot 6 subject to the easement in favour of Lot 5. At some later time the defendant erected a fence along the boundary line to the west of the pound, effectively fencing off and precluding any use by the plaintiffs of that part of their easement over lot 6. The defendant maintains that she has no use for the right of way to the west of the gates and does not wish it to be used. The plaintiffs have not in this litigation contended that the obstruction created by the fence to their use of the easement over Lot 5 west of the gates should be the subject of any judicial remedy. They appear to be content to use the land west of the gates which they own subject to the easement within Lot 6 and the formed surface which they have had constructed on it.

27 Work of construction of the road began early in September 1998. Drawing 15075 – 02 annexed to the affidavit of Mr Surveyor Gill shows that a relatively short part of the new work stands wholly or partly on the part of the right of way which falls within Lot 5; this part is 29.28 metres in length. This part continues the previously existing all-weather road, which at this place, near the plaintiffs’ house, ran on the part of the right of way which fell within Lot 5, and proceeds, as directly as is reasonably possible, to the other side of the land subject to the right of way, so that for most of its length the new work stands wholly on the plaintiffs’ land. In the course of work a concrete pipe culvert under the road was installed on Lot 5. The same drawing shows the location of the previously existing formation for much of its length from Meryla Road to the defendant’s house; where the previously existing formation is shown it runs for much of the length shown more or less along the boundary line, partly on one side and partly on the other; at other places it runs wholly within Lot 5, or wholly within Lot 6; and for the last stretch approaching the plaintiffs’ house it is within Lot 5. This short stretch of road on Lot 5 has no real impact on the plaintiff’s privacy or on any other reasonable interest of hers. It was contended on the defendant’s behalf that the reasonable course for the plaintiffs to take was to construct their new road wholly within Lot 6, presumably from some point well back east towards Meryla Road where it already was within Lot 6, thus creating two roadways for some distance. The suggestion is quite unreasonable, as the plaintiffs were entitled, subject to their making reasonable use of it, to exercise their right of way over Lot 5; they might, if they had wished to be obstinate, have directed much more of the new road works onto Lot 5, and it would be difficult to establish that to do so was an unreasonable exercise of their right of way. They did not choose to do so, and the course which they did take, in which they connected the existing formation to a road largely constructed on their own land, cannot rationally be criticised as an unreasonable exercise of their rights.

28 It was Mr Clifford’s evidence that the topography did not favour constructing this part of the road on Lot 6. Mr Clifford said that the right of way was very steep at the section which a road within the right of way but on Lot 6 would have had to cover. So there was a good reason for putting the road where it is.

The law- dominant owner’s road works.

29 The contention that it was not reasonable for the plaintiffs to put in place a formed road surface for all-weather passage of vehicles over what would otherwise be turf and pasture, when contrasted with the availability to the defendant of such an all-weather road elsewhere on the easement, leading to her own house but no further, is so strange that it is remarkable that it was put forward, but as it was put forward I must adjudicate on it, and see no difficulty. It was not to the point to observe as defendant’s counsel did that the easement is not necessary for land access as both properties have substantial frontages to Meryla Road. Whether or not they could use other means of access, both parties are entitled to these means of access.

30 A clear statement on the rights of the dominant owner to form road surface was made in Newcomen v. Coulson (1877) 5 ChD 133 by Jessel MR at 143-144, with the concurrence of James LJ and Baggallay JA. In that case a right of way had been created over a strip of land 11 yards wide when the land having the benefit of the right of way was used only for agriculture. More than a century later the then owner set about building 26 dwellings on the land and forming a street for the purpose, including creating a metalled surface over the right of way. Jessell MR said, at 143-144:

Then it was said admitting the owner of each house to have a right of way, still the grantees have no right to enter upon the allotments over which the right of way is granted for the purpose of laying down a metalled road. Now it was conceded to be the principle of law that the grantee of a right of way has a right to enter upon the land of the grantor over which the way extends for the purpose of making the grant effective, that is, to enable him to exercise the right granted to him. That includes not only keeping the road in repair but the right of making a road. If you grant to me over a field a right of carriage-way to my house, I may enter upon your field and make over it a carriage-way sufficient to support the ordinary traffic of a carriage-way, otherwise the grant is of no use to me, because my carriage would sink up to the naves of the wheels in a week or two of wet weather. It cannot be contended that the word “repair” in such a case is limited to making good the defects in the original soil by subsidence or washing away, it must include the right of making the road such that it can be used for the purpose for which it is granted. Therefore I think the Defendants have a right to make an effective carriage-way going, as they are doing, by the shortest route, and not interfering with the land to a greater extent in width than the width of the street pointed out by the deed itself.

31 The continuing authority of this decision was recognised in the Court of Appeal of England in Mills v. Silver [1991] Ch 271 at 286-287 – Dillon LJ:

In the second place if the first and second defendants or their predecessors had been expressly granted a right of way for all purposes with or without vehicles over the disputed track that would have entitled them not merely to repair the disputed track but to improve it to make it suitable for the accommodation of the dominant tenement even if the dominant tenement was to be used for some purpose not in contemplation at the time of the grant: see Newcomen [(1877) 5 Ch D 133 at 143]. This is founded on the presumed intention of the grant. In the simplest case, if a general right of way is granted with or without vehicles, which is to be the principal access to a house, it is permissible for the grantee to improve it by making it up as a carriageway: see for instance Gerrard v Cooke (1806) 2 Bos. & Pul. N.R.109

Moving the gate-post.

32 Claim 2 in the Amended Summons relates to a gate which, when the plaintiffs became the owners of the property in August 1998, was part of fences and gates which controlled movement on and near the easement at a point to the west of the all-weather surface road then in position, and to the west of the defendant’s house.

33 The layout of the area which I refer to as the pound, after the construction of the all-weather road and the removal of the post and gate, can be understood from photographs at pp23, 24 and 25 of Mr Clifford’s first affidavit, taken with the diagrams at pp26 and 27. The layout of the gates is shown in a diagram annexed to the Amended Summons entitled “Original position of gates and fencing.” All the diagrams show the wrong position for the westernmost gate, gate 4 which gives access to one of the plaintiffs’ padlocks: this gate is hinged at the north on the fence post, not at a post at the southern point of the gate.

34 Speaking approximately, the arrangement of gates and fences formed a rectangle, with a pair of gates opening to the south out of the rectangle and giving access to a lane which forms part of Lot 5. On its eastern and western sides the rectangle was bounded by fencing running northwards across most of the right of way, then by a swing gate on each side. As the easement was fenced on the north and south sides, when these gates were closed the rectangle formed a pound or pen. The gate on the eastern side closed against a post forming part of the fence line of Lot 6; two other gates on the fence line to also closed against this post. These two gates gave access to paddocks on Lot 6. By various combinations of opening and closing gates, cattle moving in the easement could be directed into one or other of the paddocks on Lot 6. Claim 2 in the Amended Summons relates to the plaintiffs’ alleged right to have the gate on the eastern side of the rectangle in position and able to be used to facilitate or block off movements of cattle. This is not a right or claim arising under the easement. The right to use the easement for passage is not the source of the plaintiff’s right to have a gate across it. As the eastern gate and the post to which it was hinged were on the northern side of the easement the probabilities are (although no survey evidence establishes this) that the post and the gate stood upon Lot 6, and as the post and the gate hinged to it were fixtures, the plaintiffs owned them.

35 The substance of the plaintiffs’ complaint is that the defendant caused the post on which the eastern gate was hinged and the gate itself to be removed; that she did this by directing the contractor whom the plaintiffs employed to construct the all-weather road to do this. The post was later re-erected a short distance further south, at a point where the gate if hinged on the post could not close the aperture, and the gate was incorporated in the short fence. On the eastern side of the rectangle, so as to connect the post to the fence along the southern boundary of the easement. The new position of the post and the gate appear on photograph No. 1 at p23 of Andrew Clifford’s affidavit of 15 December 1999. The eastern gate could no longer be used in the convenient manner earlier available to control movements of cattle, so that if cattle were being moved two persons rather than one person would be required to take part so as to direct their movement into one or other of the plaintiffs’ paddocks and prevent cattle from proceeding further east.

36 The plaintiffs did not call the evidence of the contractor or of anyone else to prove that the defendant directed the contractor to remove the post and the gate. Mr Andrew Clifford gave evidence, in answer to an incautiously wide question in cross-examination, that the contractor had told him that she had. The defendant’s account of the events was altogether different. She said that the contractor had removed the post and the gate in the course of the work which he was doing for the plaintiffs of constructing the all-weather road; in her account, the aperture was too narrow to allow for the width of the all-weather road which was 4 metres wide and still keep the gate, which was 3.6 metres wide. She said that the post if not removed would have partly obstructed the all-weather road. She said that the post lay on the ground for about six weeks, and the gate was left unused and leaning against a fence, and that she then directed another person, not the plaintiff’s contractor, to put the post in its new position and hang the gate on it. What she says she did was, in my opinion, an infraction of the plaintiffs’ property rights in the post and the gate, but it was not an unreasonable obstruction of their right of way.

37 The evidence that the defendant directed the contractor to remove the gate and the post was hearsay and I did not find it persuasive, in view of its being in the power of the plaintiffs to prove the facts in a clearer way, and their having the onus of proof. Although the defendant has shown herself, in my finding, to be quite unreliable as a witness, lacking in objectivity and prone to evasions and combative intrusions when giving evidence, I am of the view that I should accept this part of her evidence and find that she did not have any part in causing the gate to be removed. The evidence she gave on this subject is not improbable, she did not bear the onus of proof and the plaintiffs’ evidence on the subject was of slight weight. For these reasons I am of the view that the plaintiffs should not succeed on Claim 2 in the Amended Summons.

38 The situation after the post and gate had been removed, but before they were re-erected appears from two photographs in Exhibit 1. The photographs were taken about September 1998 and show the removed fence post lying on the ground. Photograph B shows the removed fence. Photograph A also shows that the surface of the ground, including part of the surface of Lot 5, was cut in the course of construction of the road surface by the plaintiffs’ contractor in September 1998. The defendant complained of this, apparently as an instance of her view that no change in the surface was authorised. Photograph B also includes the cut area, and suggests that the steepness of the cutting may not appear clearly in photograph A. As often happens, perspective is difficult in the photographs. If it is accepted that it was a reasonable user to put the formed surface in place, the need to make the cutting follows.

Electric Fence and Photineas

39 Claim 3 in the Amended Summons relates to fencing and shrubs. At some time in or after September 1998 the defendant planted two stands of shrubs, said to be Photinias, at places on her land which were subject to the easement. Mr Clifford’s evidence was that he agreed to planting one of these stands but not the other. The general positions of the plantations of Photinias are shown on a diagram annexed to the Amended Summons entitled “Current position of hedges, plants and fencing”. (This diagram also shows the present position of the gate the subject of claim 2.) Detail 2 of drawing 15075-02 Issue B shows the situation of the more westerly Photinia hedge and the electric fence around it as they were on 1 January 2002, and as they remained until a few weeks before the hearing. The shrubs themselves could not be regarded as obstructions to the reasonable use of the right of way; they could have no influence on the passage of vehicles on the formed surface, and would not obstruct operations of droving cattle along the right of way. A break about 10 feet wide west of the stand of Photinias allows cattle to walk through, so that without the electric fence they are not boxed in. The defendant erected an electric fence, supported by steel posts, to protect these plants in their growing stage; the fence has been moved at least once, so that the area fenced off has not always been the same, and about a month before the hearing the electric fence itself was removed, although the steel posts were not.

40 Detail 2 of Drawing 15075-02B illustrates a passage in Mr Clifford’s evidence where he described difficulty and inconvenience which arose when cattle were moved westerly along the right of way; cattle could and sometimes did proceed into a pocket formed by the Photinia hedge, the electric fence and the fence and gate forming the eastern side of the pound or pen. When this happened the cattle would then have to be herded out of the pocket, around the hedge, then to move westwards following the formed road surface. This illustrates the difficulties of the relationship between the parties; if it is accepted, as it must be, that there is a right to move animals as well as vehicles along the easement, the inconvenience is obvious, and so is the defendant’s lack of regard of the rights of the plaintiffs. Although the defendant had Mr Clifford’s agreement to planting the hedge, her putting the electric fence in place, without his agreement, is inconsistent with her professed belief about a need for the consent of both parties for any alteration to structures in the right of way.

41 As I understand her evidence it is the defendant’s position that the shrubs have grown to a stage where they no longer need the protection of the electric fence. Her evidence seemed to indicate that she was prepared to remove the posts, but she did not entirely unequivocally say that she would do so. As the steel posts remain and the defendant’s evidence did not dispel the reasonable apprehension that the electric fence, which has appeared in several positions and was removed shortly before the hearing, may well re-appear, there should be an order requiring the removal of the posts and restraining the re-erection of the electric fence.

The Cattle yards

42 The most significant of the plaintiffs’ claims is Claim 1 which relates to the cattle yards.

43 Although there are a number of photographs in evidence, including the aerial photograph taken in 1991, there is unfortunately no photograph which gives a clear illustration of all the equipment which comprised the cattle yards from 1986 to 1999. Detailed sketches made by Mr Goodman who was employed as the plaintiff’s farm manager in 1999, are annexed to his affidavit. A sketch of the layout of the cattle yards before the events the subject of Claim 1 was given by Mr Andrew Clifford at p23 of his first affidavit. The fences and gates and the layout of the yards they formed, after removal of the equipment, appear in detail 1 of drawing 15075-02 Issue B annexed to the Affidavit of Mr Surveyor Gill. The cattle yards stood on Lot 5, and as the yards including all significant components were fixtures, they were the defendant’s property. The defendant gave evidence to the effect that she had in fact paid for a number of the components of the yards. Her proprietorship of the cattle yards and all components of them is undoubted and was not challenged by the plaintiffs’ claim, which relates to entitlement to use the cattle yards under the easement, not to ownership of the fixtures.

44 The defendant sent the plaintiffs a fax message dated 24 September 1999 which said:

24 September 1999

Dear Andy

Since returning from overseas I have had fencers at the farm.

Upon inspection by the fencers, it was noted that the vertical posts supporting my cattle crush were rotten in the lower sections. Other posts were close “to the end of their life.” I have taken the decision to relocate my equipment to a more appropriate site central to my farm.

As you know I am accredited cattle care farmer and this accreditation requires an individual farm treatment area.

The yard remains at the corner of the holding paddock and your access remains unchanged.

I have repaired at my own cost the front boundary fence to Meryia Road. I did mention that this fence was in a poor condition and this would need to be considered at some stage.

Robyn

45 This message can be understood as drawing a distinction between “my equipment” and the cattle yards. It did not identify what “my equipment” was, although it is possible that it was indicated that the cattle crush was part of “my equipment”. It was Mr Andrew Clifford’s oral evidence that the first notice he had of the defendant’s intention to dismantle the cattle yards was when he saw her employees removing a major part of the fencing, the cattle crush and the calf cradle. At one point in his evidence he said that the removal of the fencing required for the cattle crush was subsequent to his receipt of the message dated 24 September 1999; at another point he said that he received the message soon after seeing the defendant’s employees removing a major part of the fencing. It was claimed that this was injurious to his credit but I see it as a minor anomaly. I do not regard the order of these events as important.

46 The defendant said in evidence to the effect that before 24 September 1999 she had a conversation with Mr Andrew Clifford in which he said to her:

“my farm is now a stud farm and it is now time for each of us to have our treatment areas and I will install a new cattle crush on Lot 6”. I said the “cattle crush on the easement belongs to me and I paid for it and I will relocated it on my land, the easement does not allow for the treatment of cattle, but only allows the bringing holding and moving of cattle. The cattle yards can remain in the same position so that they can be used for holding prior to loading or unloading.” I confirmed this conversation in my fax of 24th September 1999.

47 Mr Andrew Clifford denies that there was any such conversation. It follows that he denies that he initiated the project of each party having his or her own treatment area, and denies that he initiated the exchange by referring to his intention to install a new cattle crush on Lot 6. Mr Clifford appeared to me to be careful and well considered as he gave evidence, and considering the nature of the events he was dealing with, he was moderate in his manner. His evidence was free of strange attitudes and improbable beliefs. He gave me the impression that he is a reliable witness.

48 The defendant pointed to her message of 24 September 1999 as confirming what she told Mr Clifford she would be doing. It is notable that the message does not refer to or suggest that there had been any arrangement or agreement between them. Contrary to the defendant’s evidence the message of 24 September 1999 does not confirm any such conversation; it does not refer to any conversation. The defendant responded to the letter of demand from the plaintiffs’ solicitors of 6 October 1999, by a reply of 20 October 1999 Exhibit G, and did not advance any explanation to this effect. She dealt with a number of matters but did not contend that the removal of the equipment from the cattle yard had occurred at the request or with the consent of Mr Clifford. She first gave an account of the events in which Mr Andrew Clifford initiated these events in her affidavit of 4 February 2000.

49 According to the plaintiffs’ case and evidence the steps which Mr Clifford took to acquire a cattle crush and other equipment and to erect yards within Lot 6 were not steps which he planned in advance, but steps he embarked on with urgency when he saw the disruption of the cattle yards on Lot 5. He put forward the steps he had to take provide himself with other cattle yards as the basis for a claim for damages. He acted very promptly, within two or three days, to buy other equipment. This is not a suspicious circumstance; the nature of the event required immediate action if he was to be able to manage his cattle. Mr Clifford’s evidence shows that he had an urgent need to have new cattle yards available because he had recently purchased cattle and their management required facilities for vaccination, pregnancy testing, possible caesarean section births and many other uses, and the second vaccination of cattle was due in the time after the removal of the cattle yards.

50 Mr Clifford with his farm manager decided to start a cattle stud on the property using Charolais cattle about June 1999, and began to purchase cattle at the Charolais National Show and Sale at Tamworth about mid-August 1999. His cattle were unloaded at the cattle yards on the easement and treated by drenching and vaccinating. After the cattle yards were partly dismantled they were useful only for yarding, receiving or transporting cattle, not for treatment of cattle. The plaintiff’s program of purchasing and taking delivery of cattle was disrupted by the unavailability of the cattle yards. Temporary holding yards on Lot 6 were completed about December 1999 and permanent holding yards over the following few months.

51 In view of the destructive changes which had just been made to the cattle yards, it would have been most imprudent for the plaintiffs to have reinstated the cattle yards themselves by bringing in and installing new equipment there. Ownership of new equipment would pass to the defendant when it was fixed in position. It was plain enough that the defendant did not want the cattle yards to be properly equipped. For the plaintiffs to furnish themselves with their own cattle yards on an incontestable area of land was a prudent response.

52 The plaintiffs’ new cattle are situated about a kilometre from the road. They are not altogether convenient because it is impossible to get a semi trailer vehicle to them, so that when cattle are moved with a semi trailer they have to be loaded or unloaded at the yards at the Meryla Road frontage.

53 In my finding the defendant’s account, in which the equipment in the cattle yards was dismantled and the cattle yards lost most of their usefulness in a course of events which Mr Clifford had agreed to and had indeed initiated for purposes of his own, is entirely untrue. In my finding the events began when the defendant signalled her intention to remove equipment, not at all in a clear way, by her message of 24 September and went ahead immediately, without giving the plaintiffs any opportunity to respond to the message. In the message she suggested that a number of the posts in the cattle yard were rotten in the lower sections or close to the end of their life. Photographs taken by Mr Clifford within a few days of the damage, which are at pp34 to 46 of his affidavit, show that the defendant was quite wrong to assert that the posts were rotten in the lower sections or close to the end of their life. If any posts had been in that situation, that would not justify what was done. The photographs show that the yards and the equipment were in generally good and sound condition and that a number of sound posts were either dragged out of the ground with their surrounding concrete bases or chain-sawed off leaving stumps of posts which obviously would have been serviceable for years. The concrete pad on which the cattle crush formerly stood, and to which it was bolted, was torn up. The cattle crush and calf cradle lay unfixed at the yards for some weeks, and then they were removed and fixed in position for use elsewhere on the defendant’s land. There was no response to the demand that the defendant restore the area to its original condition. Some gates and fencing and some other equipment remained, but the utility of the cattle yards referred to in the easement was very greatly reduced. The working equipment which gave the yards their principal utility was vandalously destroyed so that the defendant could use the equipment elsewhere, in entire disregard of the easement and the rights over the cattle yards which it conferred on the plaintiffs.

54 The defendant said on affidavit “I deny that there is any damage caused to the easement. I removed old rotten posts together with their concrete bases”. She also said of a photograph produced by the plaintiffs “Annexure Q clearly shows that the post removed had rotted.” These passages show that the defendant’s evidence is altogether unreliable. The photographs in Annexure Q show clearly that the posts were not severely affected by rot and remained serviceable.

55 On behalf of the defendant it was contended to the effect that the fact that the plaintiffs purchased equipment and constructed cattle yards on their own property in some way bears out the defendant’s contention that the work was done with the consent of the plaintiffs. In my finding however it has no such tendency. It was also contended to the effect that the fact that the plaintiffs have now constructed cattle yards and purchased appropriate equipment has the effect that they have no real need for the cattle yards to which the easement relates. As the plaintiffs, as I have found, furnished themselves with other cattle yards as a response to the defendant’s destructive conduct, this is a travesty of their position. It also fails to acknowledge their rights; they are entitled to the easement, including the right to use the cattle yards located at the Meryla Road entrance in common with the owner of Lot 5, whether or not they own other cattle yards, or if they own a hundred others. The removal of equipment from the cattle yards unreasonably impeded the exercise of their right to use the cattle yards, was plainly a nuisance, and calls for a remedy which will be effectual in relation to the nature of their rights.

56 In my view it is not appropriate to award damages as the sole remedy for the tort committed by the defendant in removing the equipment. The injury to the easement is not a closed event and it would not do full justice to assess as damages the diminution in the value of the easement resulting from the tort or the amount which it would be necessary to spend to make good the damage, and to award those damages to the plaintiffs. Those remedies would not meet the substance of the injury which has been done to the plaintiffs’ rights, as when damages had been awarded and paid the cattle yards would not exist in the state they were in 1986, or in a state in which they can be maintained and kept in good repair and sound condition as the s.88B Instrument contemplates. The easement is not rightly viewed as a right of the plaintiffs only; it is appurtenant to their land, and touches and concerns their land, and if it is to be effectually protected by the Court it should be protected by a remedy which makes it permanently available for exercise in the future.

57 It is a fair certainty that the obstruction to the plaintiffs’ right caused by the removal of the equipment will continue unless the defendant is compelled to restore the position by an injunction; she plainly has no intention of restoring the cattle yards to the condition they should be in. The defendant acted in a high-handed way, showed disregard of the plaintiffs’ interests, and put forward a false claim that she had acted with their consent. It would not be rational to hope that she will restore the position unless compelled to do so.

58 In my judgment the just remedy is a mandatory order requiring the defendant to restore the cattle yards, including the equipment, to the condition in which they should be and an award of damages to be assessed after they have been restored. Otherwise the plaintiffs’ rights will not be protected effectively. The cost in money and the pains and trouble expended by the plaintiffs in providing themselves with other cattle yards are elements in the assessment of damages, although the assessment will be complex as the plaintiffs have the benefit of the enhanced value to Lot 6 produced by constructing their other cattle yards. Embarking on the assessment of damages will involve an exercise of some complexity and some obscurity, on facts which cannot be fully known until the yards have been put back in their proper order.

The law-positive covenants to pay for repairs

59 Defendant’s counsel contended that it was open to the plaintiffs to proceed under cl.1(b) of the s.88B Instrument, rectify the cattle yards after giving notice, and then sue the defendant for the cost of rectification. It was then suggested that the amount involved is relatively small and that it was inappropriate for the plaintiffs to seek a remedy in this Court.

60 The present proceedings cannot be treated, as defendant’s counsel sought to do, as a small claim or one which should have been brought in some lower court. Effective remedies for the infringement of the plaintiffs’ right include a mandatory injunction, and there is no other court which it was reasonable for them to approach.

61 In my opinion the procedure in cl.1(b) is not available. The matter of complaint is not that the defendant was in default in duly performing the condition in clause 1(a) that she maintain and keep in good repair and sound condition the cattle yards. The obligation in clause 1(a) not to pull down or remove fences relates to fences and not to the cattle yards. Further it appears to me to be very doubtful as a matter of law whether, when the easement was created, a positive obligation to make a payment in respect of maintenance or repair could be imposed by a provision of a s88B Instrument. At common law a positive covenant given in association with the creation of an easement, whether a covenant to repair or a covenant to pay for repairs, and other positive covenants, were effectual as between the original grantor and grantee, but the burden of a positive covenant did not run with the land so as to bind later owners of the servient land. In Megarry & Wade “The Law of Real Property” 6th ed. London 2000 at 1004-1005 and at 1152 this is treated as a matter of course.

62 In England the view expressed by Megarry and Wade is now firmly established by the decision of the House of Lords in Rhone v Stephens [1994] 2AC 310. Lord Templeman said at 321:

For over 100 years it has been clear and accepted law that equity will enforce negative covenants against freehold land but has no power to enforce positive covenants against successors in title of land. To enforce a positive covenant would be to enforce a personal obligation against a person who has not covenanted. To enforce negative covenants is only to treat land as subject to a restriction.

63 I find the speech of Lord Templeman, with whom all members of the House concurred, persuasive, indeed convincing, and in my view I should follow it. This is a subject on which no settled position has appeared from Australian decisions, which I will review.

64 Megarry and Wade refer to several mechanisms which can produce much the same result, that presently significant being that the grant of an easement may be so expressed that entitlement to the benefit is conditional upon compliance with some condition such as the payment of money for repair. In the present case the s.88B Instrument is not expressed so as to make enjoyment of the right of way conditional upon the dominant owner’s having first met the cost of repair and maintenance. In any event that mechanism would be ineffective if, as appears to be the case of the defendant, the servient owner was prepared to accept being denied the benefit of the easement.

65 In Frater v. Finlay (1968) 91 WN (NSW) 730 at 734 Judge Newton QC decided:

Whether the covenant does or does not run with the land does not seem to me to matter. If a covenant is an easement or part of an easement, or is an incident to an easement, that, I think, is sufficient to bind the assigns of the grantor and to confer a benefit upon the assigns of a grantee.

66 Judge Newton’s opinion was based upon Cameron v. Dalgety [1920] NZLR 155 (Herdman J), and on a review of some earlier authorities which appear to me to show the difficulty of the conclusion which Judge Newton reached. In Cameron v. Dalgety the covenant of the grantor on behalf of himself and his assignees was treated as part of the grant. In Frater v. Finlay, with what I regard as a marked extension of anything supported by Cameron v. Dalgety, the covenant by the grantee for himself and his assigns was treated as part of the grant. Frater v. Finlay has had later judicial consideration, not uniformly favourable. In Rufa Pty Ltd v. Cross [1981] Qd.R 365 in the Full Court of the Supreme Court of Queensland mutual easements for support were granted by joining owners over a party wall; each party was to be at liberty to extend the wall longitudinally and was to pay in the first place all the construction costs, and in the event of the other party desiring at any subsequent time to use any part of the extension he was to pay the other party one half of the value of such portion of the extension as he proposed to use. In the court below it was held that the covenant was part of the essential fabric of an easement binding upon any successors in title who chose to make use of the extension; and it was enforced against a subsequent owner. D.M. Campbell J held that the right to use the extended portion of the wall provided that a neighbour seeking to use it contributed half its value was a right capable of forming the subject matter of a grant of an easement; see 368B. Lucas SPJ agreed with this view: see 366D while Kneipp J did not: 370-371. With respect, I do not find the view expressed by D.M Campbell J to be applicable to support any general principle relevant in the present case. In my understanding his Honour was of the view that the meaning and effect of the grant of easement were that the right to use the extended portion of the wall was conditional upon contributing half its value; see 368B. This conclusion does not uphold the ruling in Frater v. Finlay, to which Lucas SPJ and D M Campbell J did not refer. In my respectful view an observation of Kneipp J at p370F-G shows that the conclusion of Newton DCJ in Frater v. Finlay was incorrect: “But I cannot see that a covenant by the grantee can be regarded as part of the grant.” See 370F-G to 371B.

67 Kneipp J at 371 upheld the claim on a different ground, that “A man who takes the benefit of a deed is bound by a condition contained in it though he does not execute it.” This ground is not applicable in the present case, where the defendant is not seeking to take the benefit of the easement but appears concerned to minimise its effect in every way she can. The principle relating to benefit and burden cannot apply to the defendant in respect of the cattle yards, which are situated on her own land; no benefit with respect to the use of the cattle yards is conferred on her by the easement. The principle of benefit and burden,, if it had been invoked, may well have supported the decision in Frater v. Finlay. It was in this context that, in Gallagher v. Rainbow (1994) 179 CLR 624 at 647-648 McHugh J referred to Frater v. Finlay and Rufa v. Cross – “Furthermore, the successor in title to a person bound by a deed may be bound by obligations in the deed if the successor in title takes a benefit conferred by the deed Rhone v Stephens [1994] 2 W.L.R 429; Halsall v Brizell [1957] Ch. 169; E.R. Ives Investments Ltd. v High, [1967] 2 Q.B. 379; Frater v Finlay (1968), 91 W.N.(NSW) 730; Rufa Pty. Ltd. v Cross, [1981] Qd R. 365.” McHugh J assumed but to my reading should not be understood to have decided that the benefit and burden principle extends to persons who are not parties to or named in the Deed; see p648. The benefit and burden principle was extensively criticised in Government Insurance Office (NSW) v. KA Reed Services Pty Ltd [1988] VR 829 by Brooking J in his judgment at 830 to 841: the views of Brooking J would have to be addressed carefully by a court which is asked to act simply on that principle, but that is not the present case. The principle of benefit and burden has not become established as a general legal principle. It has sometimes been referred to as the Ocean Island Equity, an allusion to Tito v Waddell (No 2) [1997] Ch 106. It was considered with references to authorities and sources, by Young J in Rural and Agricultural Management Ltd v West Merchant Bank Ltd (1995) 18 ACSR 793 and in Ryan v Rouen [2000] NSWSC 468 at paras [72] to [75]. There seems to be room for such a principle where owners of equitable interests or claimants against a fund compete with other similar claims. In context of positive obligations under easements Rhone v Stephens appears to have concluded against any such principle.

68 In my opinion Rufa v. Cross is not authority for the principle upon which Frater v. Finlay was decided. In my view I should not follow Frater v. Finlay. I should follow Rhone v Stephens. For that reason the contention that the plaintiffs could, and also should have sought a much simpler remedy in a Local Court is not well founded.

69 It is not difficult to see inconveniences in this state of the law, and several provisions of the Conveyancing Act 1919 now deal with positive covenants. Positive covenants were first dealt with by amendments to Pt.6 Div.4 of the Conveyancing Act 1919 made by the Conveyancing (Covenants) Amendment Act 1986, which commenced on 21 May 1986, later than the registration of the deposited plan, and dealt only with positive covenants imposed by prescribed authorities, in aid of public purposes such as Town Planning. More general provisions relating to positive covenants for maintenance or repair in s.88BA were inserted in the Conveyancing Act 1919 by the Property Legislation Amendment (Easements) Act 1995.

The Cross-claim

70 In her Cross-claim filed on 17 February 2000 the defendant makes several claims. She claims damages for personal injury which she alleges she suffered on 15 January 2000. She alleges that about 2 pm on that day she was on foot moving cattle across the right of way, the first plaintiff Mr Clifford travelled in a Range Rover along the right of way, that he moved close to her cattle and commenced to honk his horn loudly; she alleges that the cattle started running and rearing, he drove his Range Rover through the cattle at high speed and one of the animals reared up and caused a gate to hit the defendant in the face, causing injury. She did not follow the procedures in the Motor Accidents Compensation Act 1999 in pursuing this claim. The defendant has not used procedures in that Act under which her claim could be exempted from assessment.

71 The events alleged to have occurred on 15 January 2000, if they happened at all (and it was strongly contested as a matter of fact that any such events happened, an issue on which I make no finding) would make applicable the definitions of “motor accident” “injury” and “claim” in s.3 of the Motor Accidents Compensation Act 1999, and the provision of s.108 of that Act would operate to establish that the defendant was not entitled to commence court proceedings against the plaintiffs in respect of the claim.

72 Where these provisions apply a claimant cannot elect to proceed outside the Motor Accidents Compensation Act 1999; see Emad Trolley Pty Ltd v. Shigar [2002] NSWCA 231. Under subs.109(1) the defendant is no longer entitled to commence proceedings and there is no prospect of her being given leave because the total damages likely to be awarded would be less than $71,000, that is 25% of $284,000 referred to in s.134. Defendant’s counsel conceded in closing submissions that the Motor Accident Compensation Act 1999 had not been complied with and that the claim should not succeed. In my opinion this concession was correct.

73 In the cross-claim the defendant also claimed an injunction to restrain the plaintiffs from sounding the horn of the motor vehicle while travelling on the easement, and other claims relating to reinstatement of the right of way and rearranging their fencing, which were not pressed in counsel’s submissions, and for which no grounds were shown by evidence.

Conclusion and Draft Orders

74 The mandatory injunction should be settled with care so as to define the work which the defendant is to be compelled to do in sufficient detail to enable enforcement measures to be taken if she does not comply. I propose to publish a draft order but to direct plaintiffs’ counsel to prepare a draft of the mandatory injunction and show it defendant’s counsel before I address the terms in detail.

75 The Draft Orders are:

On the plaintiffs’ claims in the Amended Summons dated 15 October 2003

(1) (Mandatory injunction is to be drafted for reinstating cattle yards.)

(2) Order that within seven days the defendant remove from the site of the easement in Deposited Plan 731284 all steel posts formerly supporting the electric fences.

(3) Order that the defendant by herself, her servants and agents be permanently restrained from erecting any electric fence and also from erecting any steel fence post within the site of the easement in Deposited Plan 731284 without first obtaining leave of the Court.

(4) Dismiss Claim 2 in the Amended Summons

(5) Order that after compliance by the defendant with Order 1 or further order it be referred to the Master to inquire into assess and certify the amount of the damages which the plaintiffs ought to recover against the defendant and further order that judgment be entered for the recovery by the plaintiffs from the defendant of the amount of the damages so certified.

(6) Reserve liberty to apply with respect to enforcement of Order 1, damages, interest, costs and generally.
Upon the Cross-claim
(7) Give judgment for the cross defendants with costs.


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Last Modified: 11/06/2003