Davey v Colovic

Case [2021] SASC 7

SUPREME COURT OF SOUTH AUSTRALIA

(Land and Valuation Division)

DAVEY & ANOR v COLOVIC

[2021] SASC 7

Judgment of the Honourable Justice Parker  

8 February 2021

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - PLEADINGS - STRIKING OUT

REAL PROPERTY - EASEMENTS - PARTICULAR EASEMENTS AND RIGHTS - RIGHTS OF WAY

REAL PROPERTY - TORRENS TITLE - INDEFEASIBILITY OF TITLE - CERTIFICATE OR FOLIO OF REGISTER AS CONCLUSIVE EVIDENCE

This is an interlocutory application filed by the applicants seeking orders to strike out paragraphs 3.3, 4.3, 10 and 22 of the respondent’s defence and striking out the respondent’s cross claim. Alternatively, the applicants seek that judgment or summary judgment be entered in their favour in respect of the respondent’s cross claim.

The proceedings concern a portion of the applicants’ property that encroaches onto, what the applicants contend, is a right of way situated on the respondent’s property. The applicants seek an order under s 4 of the Encroachments Act 1944 (SA) transferring the area of the encroachment to them.

The respondent’s defence to these proceedings includes a denial that the right of way alleged by the applicants subsists over the relevant portion of the respondent’s land. The respondent contends that, on its proper construction, the right of way is only available to be used until it is stopped up. Once the right of way becomes stopped up, it no longer exists. On that basis, the respondent filed a cross claim asserting a claim in trespass against the applicants.

The applicants contend that the easement recorded on the respective certificates of title provides for an indefeasible interest in favour of the applicants, therefore there is no reasonable basis for denying the existence of the right of way or asserting a claim in trespass.

Held, per Parker J:

1. Until such time as the Registrar-General may exercise her power under s 90B of the Real Property Act 1886 (SA) (RPA) to remove the easement from the respective certificates of title, the easement subsists. As such, the paragraphs of the respondent’s defence which contain a denial that a right of way subsists over the relevant portion of the land of the respondent lacks “a proper basis because it is based upon an assertion for which there is no basis in the material available to the party”.

2. Based on the finding that the right of way subsists, until such time as the Registrar-General exercises her power under s 90B of the RPA, there is no reasonable basis for the assertion that the applicants are trespassing on the land of the respondent.

3.      Paragraphs 3.3, 4.3, 10 and 22 of the defence filed by the respondent are struck out.

4.      The respondent’s cross claim is summarily dismissed. 

Conveyancing Act 1919 (NSW) s 89; Encroachments Act 1944 (SA) s 4; Real Property Act 1886 (SA) ss 69, 70, 90B; Registration of Deeds Act 1935 (SA) s 6; Transfer of Land Act 1958 (Vic) (Vic) s 73; Uniform Civil Rules 2020 (SA) 144.2, referred…

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Davey v Colovic [2021] SASC 7
Case
[2021] SASC 7
Decision Date

CaseChat Overview and Summary

In the matter of Davey v Colovic, the applicants sought orders to strike out specific paragraphs from the respondent's defence and the respondent's cross-claim. The applicants argued that the existence of a right of way over the respondent's land was a matter for the Registrar-General to determine under section 90B of the Real Property Act 1900 (SA), or alternatively, they sought judgment or summary judgment in their favour regarding the respondent's cross-claim. The dispute centred around the interpretation and existence of a right of way easement over the respondent's land, which the applicants claimed encroached upon their property.

The central legal issues before the court were whether the court could determine the extinguishment of a limited duration easement or if such a decision was solely within the purview of the Registrar-General, and whether the determination should be made at the interlocutory stage or deferred until the trial. Additionally, the court needed to ascertain whether the right of way easement could contain a term limiting its duration and if such an easement could only be extinguished by the Registrar-General under section 90B of the RPA.

The court held that an easement could indeed be created in a limited form if it was clearly delineated in the grant. The court found that the easement in question was too uncertain due to vague terms such as "remain unaltered" and "comprise only two residences," rendering the grant ineffective. The court also determined that the issue of whether the easement had been extinguished could be decided by the court, rather than being exclusively within the Registrar-General's jurisdiction. Consequently, the court struck out the specified paragraphs of the respondent's defence and the cross-claim, finding that the applicants were entitled to judgment in their favour.

The final orders included striking out paragraphs 3.3, 4.3, 10, and 22 of the respondent’s defence, as well as the respondent’s cross-claim. Additionally, the court entered judgment in favour of the applicants regarding the respondent's cross-claim, with the respondent to pay the applicants' costs of the application.

Orders

Orders of the court

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Background

Background to the litigation

The applicants seek orders striking out paragraphs 3.3, 4.3, 10 and 22 of the respondent’s defence and striking out the respondent’s cross claim. In essence, the applicants contend that whether the right of way subsists may only be determined by the Registrar-General. Alternatively, the applicants seek that judgment or summary judgment be entered in their favour in respect of the respondent’s cross claim. Background The land that comprises the subject of these proceedings is: 1.180 – 182 Tynte Street, North Adelaide, being the land comprised and described in Certificate of Title Volume 5172 Folio 957, of which the applicants are, and have been since they purchased the land on or about 16 November 2015, the registered proprietors (Applicants’ Land); and 2.178 Tynte Street, North Adelaide, being the land comprised and described in Certificate of Title Volume 5830 Folio 246, of which the respondent is the registered proprietor (Respondent’s Land). The applicants contend that the Respondent’s Land is the servient tenement in respect of a right of way marked “A” on the Certificate of Title Volume 5830 Folio 246. The right of way runs from Tynte Street through the Respondent’s Land and intersects with another right of way which runs parallel to Tynte Street through to Mansfield Street.[1] The respondent contends that the right of way marked “A” no longer exists. [1] The private road which runs parallel to Tynte Street from Mansfield Street and intersects with the area marked A on the Respondent’s Land is labelled B on the Certificate of Title for the Applicants’ Land (i.e. Certificate of Title Volume 5172 Folio 957). An identification survey report, prepared for the applicants by a licensed surveyor, Mr Jeffrey Fudge, indicates that the encroachment onto the Respondent’s Land occupies a rectangular area of 3.5 m x 0.76 m (the Encroachment), located entirely within the alleged right of way. The survey report also shows that the Encroachment precisely coincides with the point at which the boundary between the Applicants’ Land and that of the respondent moves directly to the west by 0.76 m. That westward realignment extends 3.5 m to the northern boundary of the land. The Encroachment includes an air conditioning plant, sewage and storm water outlets, electricity and gas connections and other essential utilities. A first-floor balcony forming part of the applicants’ home is located above the Encroachment. In the course of applying for development plan consent from the City of Adelaide in respect of work to be performed on the balcony area of the first floor of their home, the applicants were informed about the Encroachment by the previous owner of their land. On 18 July 2019, the respondent wrote to the City of Adelaide opposing the application for development plan consent for the proposed work to the applicants’ balcony area. The respondent maintained that objection at a meeting of the Council Assessment Panel on 19 August 2020. The basis for the objection was the Encroachment.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The applicants contend that these observations are equally applicable to a case where a reasonable defence is not disclosed. They submit that paragraphs 3.3, 4.3, 10 and 22 of the respondent’s defence should be struck out pursuant to r 70.3 of the UCR as they fail to disclose a reasonable defence. Power to enter judgment or summary judgment The applicants’ submissions in relation to r 143.2(1) of the UCR also rely on the principles stated by Doyle J in Adelaide Brighton and set out above at [24]. They also refer to the decision of Bleby J in JT Nominees Pty Ltd v Macks where his Honour held, referring to r 104 of the Supreme Court Rules 2006 that:[4][Rule] 104 also refers to striking out pleadings on grounds other than abuse of process. That is in the example quoted in the rule. One does not normally associate failure to disclose a reasonable cause of action with abuse of process. Although the latter is a compendious term, it is usually associated with some improper or collateral purpose, impugning some other court decision, involving more than one action for the same relief or some complaint associated with the process itself rather than the cause of action. Nevertheless, if the example carries weight, it would justify striking out a pleading under r 104 on the ground that it discloses no reasonable cause of action. Compare r 193, where the “proceedings” may be dismissed on this ground.[4] (2007) 97 SASR 471 at [30]. The applicants contend that, as the right of way on the Respondent’s Land is an easement registered on the Certificates of Title for both the applicants’ and the respondent’s land, there is no reasonable basis for the assertion that the applicants are trespassing on the Respondent’s Land. Further, and in the alternative, the applicants rely on r 144.2(2) for an order that summary judgment be entered in their favour against the respondent’s cross claim on the grounds 3 to 5 set out above at [12]. Relying on the doctrine of indefeasibility, the applicants submit that any evidence adduced by the respondent in support of paragraphs 3.3, 4.3, 10 and 22 of his defence will have no bearing on the fact that the right of way is a registered easement. The respondent has not sought to extinguish the registered easement by way of the process provided for by s 90B of the RPA. Accordingly, there is no reasonable basis for asserting a claim in trespass against the applicants. As such, the applicants contend that they are entitled to summary judgment against the respondent’s cross claim. The respondent’s submissions The essence of the contentions advanced by the respondent relate to the proper construction of the right of way easement. The respondent submits that the right of way is only available to be used until it is stopped up. Once the right of way becomes stopped up, it no longer exists. The respondent refers to the terms of the right of way as described in the Memorial:[5]All that piece of land part of the two several one acre sections of Town Land No. respectively 861 and 862 in the provincial survey marked with the letter A and containing in front to Tynte Street on the south side thereof 35 feet and the same in the rear abutting on a certain private road a way of the width of ten feet leading into another private road a way of the width of fifteen feet heading into Tynte Street and in depth that each side thereof eighty feet and which said piece of land contains thirty two feet and six inches of the South Eastern portion of the said Town Acre No 861 and two feet six inches of the South Western portion of the said Town Acre No 862 be the said several dimensions respectively a little more or less. Together with a right of roadway[6] along and across other portions of the said Town Acre No 862 lying on the east side of the said piece of land now used as a private road or in the event of such road being discontinued stopped up and no more used as a road then along and across the said private road of the width of 10 feet leading along the northern boundary of the said piece of land.(Emphasis added)[5] The right of way is identified in the Certificate of Title as GRO No 8 Book 101. GRO denotes the General Registry Office. [6] The italicised words are unclear in the handwritten document but, when read in context and consistently with similar usage elsewhere in the document, appear to be either “roadway” or “road a way”.

Ratio Decidendi

Legal Principle Established

The respondent submits that the decision of the High Court in Deguisa does not give rise to any new issue. The respondent’s case turns upon the specific terms of the right of way as recorded on the Certificate of Title and in the General Register Office. The limitations on the right of way are clearly and plainly recorded on the Certificate of Title and have been at all relevant times. This is not a case where the respondent is seeking to rely upon rights or instruments which are not stated or referred to within the current Certificate of Title. There was no need for the applicants to search for material extraneous to the Register Book so as to understand the limitations of the right of way. Those limitations were evident from a plain reading of the Certificate of Title and the Memorial entered in the Register Book by the Registrar-General. Consideration The applicants’ contentions do not require the Court to determine any question of fact that ought to be left for the trial. It is accepted by the parties that the easement is stopped up. Thus, the ultimate questions to be decided are, first, whether the Court can decide whether the easement has been extinguished or is this a matter that only the Registrar-General can decide under s 90B of the RPA. Secondly, if the Court can decide the extinguishment issue, should that be decided now in response to the interlocutory application or deferred until trial. Limited easements Before addressing those two ultimate questions, it is necessary to consider whether the parties have correctly assumed that a right of way easement may contain a term that limits the duration of the easement. Their disagreement is as to whether such an easement may only be extinguished by the Registrar-General under s 90B of the RPA. Before dealing with that issue, I consider it necessary to consider whether the assumption made by the parties about easements of limited duration is correct. The issue before the Supreme Court of New South Wales in Duncan v Cliftonville Estates Pty Ltd was the effect of an easement granted in the following terms: [10]A right of carriageway over the part of the servient tenement for the benefit of the dominant tenement but only whilst the size and height of the current structures erected on the dominant tenement remain unaltered and comprise only two residences. [10] [2001] NSWSC 968 at [10]. Young CJ in Eq held that:[11][11] Ibid at [27] to [32]. The real problem with the right of carriageway that is granted or purported to be granted is that it does not appear to me to be one which, as the parties obviously intended, could be a registered legal interest.The law is not yet fully developed as to how one can limit the duration of an easement. This appears from discussions in books such as Hinde McMorland & Sim, Land Law in New Zealand (Butterworths, Wellington, 1997) para 6.018. Various points are clear. One is that an easement must be the subject matter of a grant; the interest that is granted must be precise; and one must be able to know at any period of time whether the legal right exists or not. With a Torrens System easement, this is reinforced by the fact that the whole philosophy of the Real Property Act 1900 is that one must be able to see from the title deeds at any time just what are the rights and interests in the land. Just as there are difficulties with caveats etc that affect part of the land where there is no proper plan so there are also difficulties if a document presented to the Registrar General for registration as an easement does not properly define the length of time for which the easement endures so things are clear.Apart from this it seems to be the law as is said in Tiffany, Real Property Volume 2, 2nd ed (Callaghan and Company, Chicago, 1920) p 1333:“A right of way may, by the terms of the grant, be limited to certain seasons or persons, or even to a particular time of day. It may also be subject to interruption by reason of a particular use that may be made by the owner of the servient tenement”.The main authorities for this decision are Hollins v Verney (1884) 13 QBD 304 and Collins v Slade (1874) 23 WR 199. It is thus possible to create an easement in a limited form, but the grant must clearly delineate it.There are also situations involving grants which are obviously created to endure only so long as a particular purpose is subserved by their exercise and that come to an end automatically when they can no longer subserve such purpose. I am quoting from Tiffany (p 1363). The authorities for the proposition are mainly American such as Cotting v Boston 87 NE 205 (1905) (Mass), but the principle would seem to apply in this country. Tiffany takes the view it is far better to deal with these matters as rights of way that only endure for a particular time rather than rights of way that exist for all time and are then abandoned.I do not think it is useful to look at this rather esoteric subject any further. Whichever way one looks at it, the present grant is too uncertain. The size and height of the current structure have to be recognised. Then there are the weasel words, "remain unaltered". Does this mean completely unaltered such as not even to change by a few millimetres? And then one also gets words "comprise only two residences". Whatever the extent of the rules as to the expression of easements, this grant falls outside it.