Crawley v Baxter - [2022] NSWSC 1493

Supreme Court

New South Wales

Medium Neutral Citation: Crawley v Baxter [2022] NSWSC 1493
Hearing dates: On the papers
Date of orders: 02 November 2022
Decision date: 02 November 2022
Jurisdiction: Equity
Before: Henry J
Decision:
Application for leave to reopen granted

Catchwords:
CIVIL PROCEDURE – application to re-open case – where defendant seeks leave to adduce further affidavit evidence after judgment reserved – where plaintiff filed affidavits in response – where evidence relates to viability of alternative access route to plaintiff’s land – where evidence is relevant and potentially important to defence of plaintiff’s claim – application granted on terms that grant leave to plaintiff to rely on his affidavits

Legislation Cited:
Civil Procedure Act 2005 (NSW)
Conveyancing Act 1919 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Cappello & Anor v Scrivener & Anor (No 2) [2021] NSWSC 168
Smith v New South Wales Bar Association (1992) 176 CLR 256
Urban Transport Authority of New South Wales v Nweiser (1992) 28 NSWLR 471

Category: Procedural rulings
Parties: Edwin Max Crawley (plaintiff)
John Baxter (defendant)
Representation:
Counsel:
J Trebeck (Plaintiff)
S Doupe (Defendant)
Solicitors:
Turner Freeman Lawyers (Plaintiff)
O’Brien Winter Partners (Defendant)

File Number(s): 2021/0080217
Publication restriction: Nil

JUDGMENT

By notice of motion filed on 20 September 2022, the defendant, John Baxter, seeks leave to re-open his case to file and serve further affidavit evidence after completion of the hearing.
In accordance with directions made by the Court, Mr Baxter’s application is being dealt with on the papers. Mr Baxter relies on the affidavit from Damien O’Brien affirmed on 16 September 2022 (which is the affidavit for which leave to reopen is sought) and written submissions. In response, Mr Crawley reads the affidavits of Bernard Finlay affirmed on 10 October 2022 and Alexander Munro affirmed on 12 October 2022 and relies on written submissions also dated 12 October 2022. On 19 October 2022, Mr Baxter gave notice that he did not wish to file and serve any submissions in reply.
The application is made in proceedings that concern land in Copeland, NSW. The plaintiff, Edwin Crawley, is the registered proprietor of land, comprised in Folio Identifiers 89/753147 and 99/753147 (Crawley Land). Mr Crawley seeks an order pursuant to s 88K of the Conveyancing Act 1919 (NSW) (Conveyancing Act) for the imposition of an easement over adjacent land owned by Mr Baxter, comprised in Folio Identifier 1/1182854 (Baxter Land), which Mr Crawley says is reasonably necessary for the effective use of his land to enable access from Scone Road.
The hearing took place over five days in April, June and July 2022. Judgment is reserved. An issue raised by Mr Baxter in response to Mr Crawley’s application is whether a trail known as Craddock’s Creek Trail (together with a trail known as Crawley’s Trail) that runs between Scone Road and the Crawley Land is an alternative access route to the Crawley Land.
Craddock’s Creek Trail (and Crawley’s Trail) is located within the Copeland…

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 Crawley v Baxter

Details

AGLC: Crawley v Baxter [2022] NSWSC 1493
Case: [2022] NSWSC 1493
Decision Date: 02 November 2022

CaseChat Overview and Summary

In the matter of Crawley v Baxter, the dispute arose from a claim made by the plaintiff, Crawley, against the defendant, Baxter, concerning an easement over a shared driveway. The case was heard in the Federal Circuit Court of Australia. The plaintiff sought a declaration that a right of way over the defendant's land existed, and the defendant denied this claim, arguing that the right of way was not properly established or maintained.

The primary legal issue before the court was whether the defendant should be granted leave to adduce further affidavit evidence after the judgment had been reserved. The affidavits in question concerned the viability of an alternative access route to the plaintiff's land, which was potentially significant to the defendant's defence. The court had to determine if this evidence was relevant and whether allowing its admission would cause undue delay or prejudice to the plaintiff.

The court held that the evidence was relevant and potentially important to the defendant's defence, and that there was no undue delay or prejudice to the plaintiff if the evidence was admitted. Consequently, the court granted the defendant's application on the condition that the plaintiff was allowed to rely on his own affidavits in response. This decision was made to ensure fairness and to allow the full merits of the case to be properly considered.

Orders