Davidson v Elkington
[2011] WASC 29
•11 FEBRUARY 2011
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: DAVIDSON -v- ELKINGTON [2011] WASC 29
CORAM: HALL J
HEARD: 9 APRIL, 3-5 MAY, 14 JUNE, 18-20 AUGUST 2010
DELIVERED : 11 FEBRUARY 2011
FILE NO/S: CIV 2169 of 2007
BETWEEN: WILLIAM ANGUS DAVIDSON
SILVIA DAVIDSON
PlaintiffsAND
JOHN EDWARD ELKINGTON
IRENE JACQUELINE ELKINGTON
Defendants(BY ORIGINAL ACTION)
JOHN EDWARD ELKINGTON
IRENE JACQUELINE ELKINGTON
Plaintiffs by CounterclaimAND
WILLIAM ANGUS DAVIDSON
SILVIA DAVIDSON
Defendants by Counterclaim(BY COUNTERCLAIM)
Catchwords:
Easement - Right of way - Whether abandoned or obsolete - Whether grounds for modifying easement - Section 129C Transfer of Land Act 1893 (WA) - Permitted use - Whether interference with use - Adverse possession - Whether encroachment fenced - Whether intent to possess - Whether title of registered owner acknowledged - Turns on own facts
Legislation:
Limitation Act 1935 (WA), s 4, s 5, s 30
Transfer of Land Act 1893 (WA), s 64, s 65, s 68, s 129C, s 222, s 223, s 229A
Result:
Plaintiffs' action dismissed
Defendants' counterclaim dismissed
Category: B
Representation:
Original Action
Counsel:
Plaintiffs: Mr N D C Dillon
Defendants: Mr A P Hershowitz
Solicitors:
Plaintiffs: Karp Steedman Ross-Adjie
Defendants: Kott Gunning
Counterclaim
Counsel:
Plaintiffs by Counterclaim : Mr A P Hershowitz
Defendants by Counterclaim : Mr N D C Dillon
Solicitors:
Plaintiffs by Counterclaim : Kott Gunning
Defendants by Counterclaim : Karp Steedman Ross-Adjie
Case(s) referred to in judgment(s):
Barrett v RSE Holdings Pty Ltd [1999] WASC 128
Butler v Muddle [1995] NSW ConvR 35,750 (55,745); (1995) 6 BPR 13,984
Carlson v Carpenter [1998] NSW ConvR 55,848; (1998) 8 BPR 15,909
Chatsworth Estates Co v Fewell [1931] 1 Ch 224
Crossley & Sons Ltd v Lightowler [1867] 2 Ch App 478
Duncan v Louch (1845) 6 QB 904
Dunell v Phillips (1982) 2 BPR 9,517
Durian (Holdings) Pty Ltd v Cavacourt Pty Ltd (2000) 10 BPR 18,099
Ewing Phosphate Co v Driver (1903) 23 NZLR 108
George Wimpey & Co Ltd v Sohn [1967] 1 Ch 487
Gotobed v Pridmore (1970) 115 Sol Jo 78
Grill v Hockey (1991) 5 BPR 11,421
Inglewood Investments Co Ltd v Baker [2003] 2 P & CR 319; [2002] All ER (D) 378 (Nov)
Johnstone v Holdway [1963] 1 QB 601
Jones v Pritchard [1908] 1 Ch 630
Kitching v Phillips [2011] WASCA 19
Knight v Simmonds [1896] 2 Ch 294
Long v Michie [2003] NSWSC 233
Mantec Thoroughbreds Pty Ltd v Batur [2009] VSC 351; [2009] V ConvR 54,767
Markos v Autor Pty Ltd [2007] NSWSC 810; (2007) 13 BPR 24,487
McIntyre v Porter [1983] 2 VR 439
Oldham v Lawson (No 1) [1976] VR 654
Oleander Nominees Pty Ltd v Owners of Lakeside Villas [2002] WASC 255
Petkov v Lucerne Nominees Pty Ltd (1992) 7 WAR 163
Pettey v Parsons [1914] 2 Ch 653
Powell v Langdon (1944) 45 SR (NSW) 136
Powell v McFarlane (1979) 38 P & CR 452
Proprietors Strata Plan No 9,968 v Proprietors Strata Plan No 11,173 [1979] 2 NSWLR 605
Re Henderson's Conveyance [1940] Ch 835
Re Mason and the Conveyancing Act (1960) 78 WN (NSW) 925; [1962] NSWR 762
Riley v Penttila [1974] VR 547
Saggers v Brown (1982) NSW ConvR 55,054; (1981) 2 BPR 9,329
Smith v Australian Real Estate and Investment Co Ltd [1964] WAR 163
Spear v Rowlett [1924] NZLR 801
Staley v Pivot Group Pty Ltd [No 6] [2010] WASC 228
Stokes v Mixconcrete (Holdings) Ltd (1978) 38 P&CR 488
Taylor v Whitehead (1781) 2 Dougl 745; (1781) 99 ER 475
Timpar Nominees Pty Ltd v Archer [2001] WASCA 430
Treweeke v 36 Wolseley Road Pty Ltd [1973] HCA 27; (1973) 128 CLR 274
Trewin v Felton [2007] NSWSC 851; (2007) 13 BPR 24,579
Walsh v Ervin [1952] VLR 361
Westfield Management Ltd v Perpetual Trustee Co Ltd [2007] HCA 45; (2007) 233 CLR 528
Williams v Usherwood (1981) 45 P & CR 235
Zenere v Leate (1980) 1 BPR 9,300
HALL J:
Introduction
The Romans had a special reverence for Terminus, the god of boundaries. Alone of all the lesser gods he refused to defer to Jupiter. For the Romans the determination to set their own borders and to relinquish nothing to their neighbouring enemies was a guiding principle: Gibbon E, The History of the Decline and Fall of the Roman Empire Ch 1.
The spirit of Terminus appears to have been abroad in York. Both parties to these proceedings have claimed property rights and sought to protect them with fierce determination. The dispute has become poisonous with mutual antipathy. Steps have been taken that to others might seem merely petty or spiteful. There has even been a physical confrontation. Perhaps unsurprisingly, the parties have become entrenched in their respective positions, willing to give no quarter and hence these proceedings.
Dr and Mrs Davidson, the plaintiffs, and Mr and Mrs Elkington, the defendants, are neighbours. They own adjoining semi‑rural properties in York. The Davidsons' property contains an historic home called Balladong House. The Elkingtons' property similarly contains an historic home, in their case called Bridge House.
The Elkingtons' property is contained in two lots, lots 10 and 123. Lot 10 is the larger being just over 1.6 ha in size and is that on which Bridge House stands. Lot 123 is a long strip of land, 3,794 sqm in size and approximately 20 m wide and 190 m long. Lot 123 extends completely along one side of lot 10 and sits between it and the boundary to the Davidsons' land (being lot 11). A diagram annexed to these reasons illustrates the layout of the lots.
The Davidsons' title includes a right to an easement over lot 123. This burden on the land is noted as an encumbrance on the Elkingtons' title. There was, at least initially, an issue of whether the encumbrance in fact benefitted the Davidsons' property, but the evidence in that regard was clear.
Essentially the easement confers a right of way over lot 123. There is a common driveway on lot 123 from Redmile Road. At approximately one‑third of the length of lot 123 the driveway has a turning onto the Davidsons' property affording vehicle access to Balladong House. The driveway then continues on, giving vehicle access to Bridge House.
For several years there have been disputes between the parties regarding the right of way. These disputes have included disagreements as to the extent of the rights that the Davidsons have and whether the Elkingtons have interfered with the exercise of those rights. The disputes culminated in the Davidsons bringing these proceedings, by which they seek a declaration as to the existence of the right of way, damages for alleged interference with that right and injunctive relief to prevent future interference.
For their part the Elkingtons have counterclaimed seeking an order that the right of way be extinguished, or at least that part of it beyond the gate to Balladong House. They also seek an order that the right of way be modified so as to make the owners of Balladong House responsible for 50% of the maintenance costs of the right of way, including a bridge over a creek near Redmile Road. Further, they seek a declaration that the right of way extends only to the registered proprietors of Balladong House.
There is another issue that also involves lot 123. At some unknown time prior to the Davidsons and Elkingtons purchasing their respective properties a white metal pipe fence was erected on the Balladong House side of the drive. The fence was not on the boundary, rather it encroached onto lot 123. In 2006 Mr Elkington moved the pipe fence onto the boundary. The Davidsons claim that they are entitled to the land that was within the fence prior to it being moved on the basis of adverse possession. That is to say, they claim that for at least 12 years prior to 2006 they or their predecessors in title had exclusive possession of the encroached land. The Elkingtons deny this claim.
The issues for determination in this case are as follows:
1.Is there a right of way and what is its nature?
2.Has the right of way been abandoned or become obsolete?
3.Is there any other basis for modifying the right of way pursuant to s 129C of the Transfer of Land Act 1893 (WA) (the TLA)?
4.Has there been interference with exercise of the right of way?
5.Did the plaintiffs acquire the encroached land by adverse possession?
Creation of the right of way
There is no real dispute regarding the creation of the right of way in 1948. Prior to that time both the Bridge House property now owned by the Elkingtons and the Balladong House property now owned by the Davidsons formed part of a larger estate which included Balladong Farm. Balladong Farm now comprises lot 12, a property of some 34 ha to the south east of lots 10 and 11.
In 1948 Bridge House was subdivided from the balance of the estate and placed onto a separate title. That title included both of what were later to become lots 10 and 123. The title that was created in 1948 was recorded in certificate of title vol 1105 folio 166 which included a representation of diagram 13503. The diagram depicted the land and a portion marked with the letters ROW. On the original diagram that portion is coloured brown. That portion was later designated as lot 123. The title contained an endorsement to the following effect:
Transfer 2596\1948 grants to the proprietor or proprietors for the time being of the portion of lot 7 on plan 5762 comprised in volume 1108 folio 45 a right of carriageway over the portion coloured brown on diagram 13503.
Transfer 2596 of 1948 transferred the ownership of, amongst other properties, lot 7 which at that time included both Balladong Farm and Balladong House. In regard to lot 7 transfer 2596 of 1948 stated as follows:
Portion of each of Avon locations T and U being lot 6 and part of lot 7 on plan 5762 and being the balance of the land comprised in certificate of title volume 1051 folio 884 together with a right of carriageway pertinent to the said lot 7 only over the portion marked ROW on diagram 13503 the said right of way being portion of the land comprised in certificate of title volume 1105 folio 166.
The title to lot 7 was thereafter recorded on a new certificate of title, vol 1108 folio 45, which noted that the title included
A right of carriageway over the portion coloured brown on diagram 13503.
Whilst transfer 2596 of 1948 did not effect a change of ownership in respect of Bridge House, the reference to that transfer on the Bridge House certificate of title (volume 1105 folio 166) evidences that the then common owner of all of the properties clearly intended that Bridge House would be burdened by the easement.
Balladong House and Balladong Farm continued to be comprised in the same certificate of title until 1974. At that time in accordance with plan 10990, lot 7 was subdivided into lot 11, being Balladong House and lot 12, Balladong Farm. Thereafter all three properties continued to be the subject of separate certificates of title although these were superseded from time to time.
In their defence to these proceedings the Elkingtons denied that the 1974 subdivision transferred the benefit of the existing right of way to both Balladong House and Balladong Farm. However, the separate certificates of title dated 24 January 1975 (being vol 1399 folio 918 for Balladong House and vol 1399 folio 919 for Balladong Farm) both note an entitlement to a right of way in the same terms, being
… a right of carriageway over the portion coloured brown on diagram 13503 as set out in transfer 2596/1948.
There was no evidence to suggest that there was any error in this regard and, thus, no reason not to accept the evidence of the certificates prepared at that time. In any event the Elkingtons did not press any claim that the right of way was extinguished in 1975.
A new certificate of title that was issued for Bridge House in 1997 omitted to make reference to the right of way as an encumbrance. This appeared to be an administrative error and it was corrected by way of a direction from the Commissioner of Titles in 2001.
By the time the Davidsons and the Elkingtons became the owners of their respective properties both titles noted the easement. Relevantly, at that time, the Balladong House title noted, in the description of the land, that it included the land depicted in the diagram 'together with a right of carriageway over the portion coloured brown on diagram 13503 as set out in transfer 2596\1948'. The title for Bridge House included a notation in the second schedule to the effect 'transfer 2596/1948 grants the proprietor or the proprietors for the time being of the portion of lot 7 on plan 5762 comprised in certificate of title 1108 folio 45 a right of carriageway over the portion coloured brown on diagram 13503'. The benefit of the easement was also noted on the certificate of title for Balladong Farm.
Although the reference in the Bridge House title to the land in certificate of title volume 1108 folio 45 as having the benefit of the easement was to a superseded certificate that included both Balladong House and Balladong Farm, there was no reason to doubt that both of those properties had derived the benefit of the easement. Any question in that regard was, in any event, resolved by the fact that the individual titles for Balladong House and Balladong Farm both note the benefit of the easement in identical terms.
A statement in a certificate of title to the effect that a person is entitled to any easement specified therein is conclusive evidence of such entitlement. Section 64 of the TLA provides:
Whenever any certificate of title either already registered or issued or hereafter to be registered or issued under any of the provisions or otherwise under the operation of this Act shall contain any statement to the effect that the person named in the certificate is entitled to any easement therein specified such statement shall be received in all courts of law and equity as conclusive evidence that he is so entitled.
Section 65 of the TLA relevantly provides:
Where a transfer … contains the words 'together with a right of carriageway over …' or words to that effect and specifies the road or land over which the easement is created by reference to a map on which the road or land is indicated by a symbol then, unless the contrary intention appears, the words of the Ninth Schedule shall be deemed to have effect in relation to the transfer …'
In the present case there was no contest that the words of the Ninth Schedule were applicable. The Ninth Schedule relevantly provides:
Together with full and free right and liberty to and for the transferee hereunder and to and for the registered proprietor or proprietors for the time being of the land hereby transferred or any part thereof and his her and their tenants, servants, agents, workmen and visitors to go pass and repass at all times hereafter and for all purposes and either with or without animals or vehicles into and out of and from the said land or any part thereof through, over and along the road or way or several roads or ways delineated and indicated by a symbol on the said map.
Is there a right of way and what is its nature?
By virtue of s 64 of the TLA the indorsement on the titles of both lot 10 (Bridge House) and lot 11 (Balladong House) is conclusive proof that an easement exists. In the present case, however, the Elkingtons raise issues of whether the easement has been abandoned or become obsolete or should be modified having regard to the considerations in s 129C of the TLA. Before turning to those questions it is important to consider the nature of the easement. One of the factors that appears to have contributed to the disputes between the plaintiffs and the defendants has been a misunderstanding on both parts as to the extent of the rights conferred by the easement.
Some of the legal principles applicable to easements have recently been summarised by the Court of Appeal in Kitching v Phillips [2011] WASCA 19 [40] ‑ [62] (Murphy JA). That case, however, was concerned with an implied or equitable easement and thus, in that respect different from the present case. I will only refer to the principles that have particular application to this case.
The first thing to note is that both parties have fallen into the habit of referring to lot 123 as itself being the right of way. That, of course, is incorrect. Lot 123 is part of the land owned by the Elkingtons. A right of way has been granted over that land but that does not imply that lot 123 can be used for no other purpose. Indeed, it is important to stress that the Elkingtons retain all ownership rights in respect of lot 123 and are free to exercise them subject only to there being no interference with the exercise of the right of way.
The party with the benefit of the easement holds only such rights as are expressly or by necessary implication found in the terms of the relevant grant or reservation: Zenere v Leate (1980) 1 BPR 9,300, 9,304 (McLelland J); Markos v Autor Pty Ltd [2007] NSWSC 810; (2007) 13 BPR 24,487 [57] (Austin J). The land which has the benefit of the easement is often referred to as the dominant tenement and that which has the burden as the servient tenement. The use of those terms should not, however, obscure the extent and limitations of the right conferred.
When interpreting the words of the grant which creates the easement it is not appropriate to have regard to evidence as to what may have been the intention or purpose of the parties to the grant at the time it was created. One reason for this is that third parties who inspect the register must be entitled to rely upon it and are not expected to look further for material that might establish facts or circumstances existing at the time of the creation of the grant. The only admissible evidence is that necessary to make sense of terms or expressions identified in the property register such as surveying terms or abbreviations which appear on a plan: Westfield Management Ltd v Perpetual Trustee Co Ltd [2007] HCA 45; (2007) 233 CLR 528 [35] ‑ [45]. In the present case the terms of the grant are broad and incorporate the Ninth Schedule of the TLA.
It should be noted that the Ninth Schedule permits the use of the right of way for all purposes. Consistently with the rule of interpretation expounded in Westfield there is no basis for limiting the purposes for which the right of way in this case can be exercised. In any event a permissible use of a right of way can change with changes in the nature of the use of the dominant tenement over time if the terms of the grant are sufficiently broad: Westfield [42]; Timpar Nominees Pty Ltd v Archer [2001] WASCA 430 [37]. Nevertheless, it is a right of carriageway for all purposes, not a right of entry for all purposes. That is to say, the right is one to pass over lot 123 in order to access lot 11. It does not, for example, confer a right to enter lot 123 in order to pick mushrooms or have a picnic.
A dominant owner may have such ancillary rights as are reasonably necessary for the effective and reasonable exercise and enjoyment of the rights expressly granted: Jones v Pritchard [1908] 1 Ch 630, 638. Such ancillary rights can include the right to carry out such work on the right of way site as may from time to time be reasonably necessary to create or maintain reasonable access. However, such right must be exercised in a manner that is consistent with the reasonable use and enjoyment of the land by the owner and should not interfere with that use to any greater extent than is reasonably necessary: Zenere v Leate (9,305).
The owner of the servient land is entitled to fence it and install gates subject to such fences and gates not unreasonably interfering with exercise of the right of way by the dominant landowner. A right of way over land is not necessarily limited to one point of access and the owner of the dominant tenement may be entitled to as many points of access as are reasonable: Butler v Muddle [1995] NSW ConvR 35,750 (55,745); (1995) 6 BPR 13,984 (Young J). The owner of the dominant land is entitled to open new means of access but is not entitled to have the boundary with the servient land continuously unfenced upon the whole line 'so that every inch of the way he may pass onto it at any time he pleases': Pettey v Parsons [1914] 2 Ch 653, 667 (Swinfen Eady LJ) . The owner of the dominant land is only entitled to exercise the right of way by having reasonable access: Carlson v Carpenter [1998] NSW ConvR 55,848; (1998) 8 BPR 15,909.
Unless some provision is specifically made, there is no obligation upon the owner of the dominant land to 'make up the right of way to any particular standard, or indeed do anything to it at all to make the site of the right of way suitable for use by the dominant owner': Stokes v Mixconcrete (Holdings) Ltd (1978) 38 P&CR 488, 494 (Buckley LJ). The duty to maintain and repair the means by which a right of way is exercised falls on the dominant owner. The position is that if the dominant owner wants the easement repaired he or she must repair it him or herself: Duncan v Louch (1845) 6 QB 904, 910. The owner of the servient land is under no obligation to construct or repair the means by which the right of way will be exercised. The obligation on the servient landowner is merely negative; that is an obligation to refrain from acts which obstruct the exercise of the dominant owner's rights: Spear v Rowlett [1924] NZLR 801, 803 (Salmond J). Of course the position is a little more complicated in the present case because, for at least part of the way, both the plaintiffs and defendants use the same driveway. Accordingly, they both have an interest in maintaining that part of the driveway but the easement imposes no obligations on either of them to do so.
Has the right of way been abandoned?
At common law an easement once created was perpetual in nature being attached to the inheritance and passing with it: Treweeke v 36 Wolseley Road Pty Ltd [1973] HCA 27; (1973) 128 CLR 274, 283 (McTiernan J). However, it was long accepted that an easement could be extinguished by release or abandonment, either expressly or by circumstances occurring from which a release may be inferred or assumed: Crossley & Sons Ltd v Lightowler [1867] 2 Ch App 478.
Section 129C of the TLA has the effect that extinguishment of an easement by abandonment can occur in respect of land held under Torrens title. However, in order for abandonment to be effective an application must be made to the court for an order wholly or partially extinguishing or modifying the easement.
Section 129C provides relevantly as follows:
(1)Subject to subsection (1a), where land under this Act is subject to an easement or to any restriction arising under covenant or otherwise as to the user thereof or the right of building thereon, the court or a judge may from time to time on the application of any person interested in the land burdened or benefited, or any local government or public authority benefited, by the easement or restriction, by order wholly or partially extinguish, discharge or modify the easement or restriction upon being satisfied ‑
(a)that by reason of any change in the user of any land to which the easement or the benefit of the restriction is annexed, or of changes in the character of the property or the neighbourhood or other circumstances of the case which the court or a judge may deem material the easement or restriction ought to be deemed to have been abandoned or to be obsolete or that the continued existence thereof would impede the reasonable user of the land without securing practical benefits to other persons or (as the case may be) would unless modified so impede such user; or
(b)that the persons of full age and capacity for the time being or from time to time entitled to the easement or to the benefit of the restriction whether in respect of estates in fee simple of any lesser estates or interests in the land to which the easement or the benefit of the restriction is annexed have agreed to the same being wholly or partially extinguished, discharged or modified or by their acts or omissions may reasonably be considered to have abandoned the easement or to have waived the benefit of the restriction wholly or in part; or
(c)that the proposed extinguishment, discharge or modification will not substantially injure the persons entitled to the easement or to the benefit of the restriction.
Abandonment, as is evident, is referred to in both s 129C(1)(a) and (1)(b). The factors that may lead to the conclusion that abandonment has occurred are different in respect of those subsections. In s 129C(1)(a) the focus is on objective factors such as a change of user of the benefitted land, or a change in the character of the property or the neighbourhood, which could cause the court to conclude that an easement should be deemed to be abandoned or to be obsolete. However, the court may also take other circumstances into account that are deemed material to the issue. This subsection also permits modification where the benefits of the easement are outweighed by the impediment of the rights of the owner. I will return to abandonment, obsolescence and modification as referred to in this subsection later.
Subsection 129C(1)(b) permits extinguishment by agreement. That is not the case here. However, the subsection also permits a conclusion of abandonment to be inferred from the acts or omissions of those entitled to the benefit of the easement. This subsection is most like the common law concept of abandonment.
In Long v Michie [2003] NSWSC 233 Austin J said that the principles to be applied under a New South Wales provision which is materially identical to s 129C(1)(b) were no different from the principles of the common law doctrine of extinguishment by abandonment. His Honour referred to Grill v Hockey (1991) 5 BPR 11,421, 11,424 (McLelland J) in this regard.
The common law principles were stated in Williams v Usherwood (1981) 45 P & CR 235, 256:
To establish abandonment of an easement the conduct of the dominant owner must … have been such as to make it clear that he had at the relevant time a firm intention that neither he nor any successor in title of his should thereafter make use of the easement … Abandonment is not … to be lightly inferred. Owners of property do not normally wish to divest themselves of it unless it is to their advantage to do so, notwithstanding that they may have no present use for it.
Non‑use of a right of way may be a relevant factor to take into account but it is rarely conclusive that the right of way has been abandoned. In Treweeke the majority (McTiernan and Mason JJ) held that there was no abandonment of a right of way notwithstanding non‑use for over 40 years. Mason J, at 302, noted that non‑use, even over a long period of time, does not necessarily indicate an intention to abandon as non‑use can be due to lack of need to use the right of way and the availability of alternative or more attractive means of access. There have been some suggestions that a long period of non‑use may raise a prima facie presumption of abandonment, but the more recent trend of authority is that courts will reach a decision after weighing up all relevant facts without any presumption or shifting of onus: Long v Michie [17] ‑ [19].
I note that in certain circumstances an application may be made to the Commissioner of Titles for removal of an easement from a certificate of title: s 229A TLA. However, that provision did not arise for consideration in the present case. The Elkingtons brought their claim under s 129C and sought an order from the court rather than making an application to the Commissioner.
The availability of alternative access to the dominant land may be relevant as providing an explanation for why use of the right of way has not been exercised and thus prevent an inference of an intention to abandon being drawn. Alternatively, the availability of another access route, particularly if it has been acquired since the right of way was created, may indicate that the easement no longer has practical utility: McIntyre v Porter [1983] 2 VR 439. Although this latter aspect appears more relevant to the s 129C(1)(a) considerations regarding change to the property and practical benefits and to the s 129(1)(c) considerations as to whether substantial injury would result from extinguishment.
The erection of obstructions on the servient land may also be an indication of abandonment where the obstructions have been erected with the acquiescence of the owner of the dominant tenement. However, the mere existence of obstructions over a long period of time without complaint by the dominant tenement owner will not usually support an inference of abandonment. In Treweeke the erection of fences and the construction of a swimming pool across the right of way did not support a conclusion of abandonment. In any event, the construction of buildings and the erection of fences will not always interfere with the exercise of the right of way and even where they do the court will take into account whether they may be removed or modified: Gotobed v Pridmore (1970) 115 Sol Jo 78.
The fact that at the time of purchase by the owners of the dominant tenement the register recorded the existence of an easement and those owners relied upon that notation may be taken into account in the exercise of the court's discretion as to whether to make a declaration under s 129C(3) that the easement has been wholly or partially extinguished: Proprietors Strata Plan No 9,968 v Proprietors Strata Plan No 11,173 [1979] 2 NSWLR 605, 616 ((Needham J). On the other hand the existence of the power to make a declaration under s 129C(3) presumes that in some cases it will be appropriate to make orders having the effect of extinguishing an easement notwithstanding its notation on the register.
In this case, in considering whether abandonment has occurred it will be necessary to consider the evidence as to what use has been made of it in recent years. Absence of use will not necessarily lead to a conclusion of abandonment, but evidence of use, even if only sporadic or infrequent will weigh against any inference that the right of way has been abandoned. In this regard it is relevant to take into account any evidence of use by both the present owners of the dominant tenement and any previous owners.
The Davidsons claimed that not only had they used the right of way but their immediate predecessor in title at Balladong House had also used it. They also sought to rely upon use made of the right of way by the owner of Balladong Farm, but that evidence does not appear to me to be significant since the right of way formerly possessed by Balladong Farm was a different right, albeit in respect of the same land. It is entirely possible for one possessor of a right of way to abandon that right though another dominant tenement owner with a similar right does not. I should note that the right of way formerly possessed by Balladong Farm has been extinguished by consent. The current owner of Balladong Farm, Yorkland Holdings Pty Ltd, was originally the second defendant in these proceedings, but fell away when the consent order was made.
The immediately previous owner of Balladong House was Catherine Morgan who became the registered proprietor on 5 August 1992. Mrs Morgan gave evidence that from the time she purchased the property the entrance was from Redmile Road via the right of way. Mrs Morgan installed a gate at the turnoff to her property from the common driveway. When asked whether she used the right of way beyond the gate to her property, other than to visit her neighbours, Mrs Morgan said she did in order to make firebreaks or when trucks needed to get access to her property in order to fix her bore. She said she could recall on one occasion waiting for the workmen to come and fix her bore and that the truck came across country from the right of way. She said whilst she did not see exactly which part of the boundary the truck crossed, it came from a direction that was consistent with a point further along the right of way than the entrance to her property. She said it was possible to access her land from that point because the wire fence could be shifted. She could not recall who the bore contractor was but said work had been done 'a few times' over the 14 years that she owned the property. Evidence as to the exact location of the bore differed, though on any view it was to the south east of Balladong House, that is, to the rear of the house, whereas the driveway entrance is to the front. Accordingly, the route taken by the truck as described by Mrs Morgan is consistent with the location of the bore.
Dr and Mrs Davidson were registered as the proprietors of Balladong House on 2 July 2004. They gave evidence that they had been aware of the existence of the right of way from the time they purchased the property and that the principal entrance was off the common driveway. With one minor modification made by Mrs Morgan that I will refer to later, there appears to have been no change to the location of the gate from the driveway on lot 123 onto the property of Balladong House. The driveway entrance continued to be used by the Davidsons as the primary access point for their property.
It should be noted at this point that there was no significant contest that there had been regular access along the driveway to the point of the Balladong House gate. The issue at trial was whether any right of way beyond that point had been abandoned. Accordingly, the defence case was principally directed to the contention that there had been a partial abandonment of the right of way.
Mrs Davidson denied any intention to abandon any part of the right of way. She gave evidence that the rear section of the right of way had been utilised by she and her husband in order to access what she described as the back paddock. This paddock was identified on an aerial photograph as a roughly oval open area in the south east corner of lot 11. Mrs Davidson said that part of their land could be difficult to access, particularly in the winter months, other than by utilising the right of way. She said this was because an area roughly between Balladong House and the back paddock became waterlogged in winter.
Dr Davidson estimated that this section of the right of way had been used on about six occasions. Both Dr and Mrs Davidson gave evidence that on one occasion in about 2004 they had taken a tractor along the rear portion of the right of way and had then driven that tractor onto their back paddock by holding down the wires of the fence. Dr Davidson said there had been a second occasion in 2005 when he had been alone and taken the tractor along the same route. On one of these occasions the purpose had been to mow the paddock and on the other it was to rotary hoe the paddock.
The Elkingtons called two previous owners of Bridge House, Mr Hamersley who acquired Bridge House in August of 1997 and Ms Susan Schmidt who became the owner in 2004. Both Mr Hamersley and Ms Schmidt said that to their knowledge there had been no use of the right of way beyond the gate to Balladong House. That does not discount the possibility that the use described by Mrs Morgan and by Dr and Mrs Davidson may have occurred without the knowledge of the owners of Bridge House at the relevant times.
It was put to Mrs Davidson in cross‑examination that there was an alternative route to Balladong House from Parker Road. It was accepted that Parker Road did adjoin the southwest side of lot 11. However, Mrs Davidson said it was not viable to approach the house from that entrance as the land was wet in winter and otherwise was deeply furrowed such as to make passage by a normal car difficult.
Mr Michael York, an agricultural contractor, gave evidence that in 1992 and 1993 or thereabouts he had sown a crop in the Balladong House land. He said that in ploughing the land he noticed that there was a line of gravel from the end of Parker Road across the paddock towards Balladong House. He ploughed across the gravel and noticed that in the first year this had some effect upon the quality of the crop along that line. He said the gravel was of road width and he formed the view that there must have been a road across the paddock at some stage.
Mr John Clark, a carpenter, gave evidence that he had been employed to undertake some tiling work at Balladong House and drove to the house across the paddock from Parker Road. Mr Clark said on an earlier occasion he had received a telephone call from Mr Elkington who had told him not to use the front entrance to Balladong House because there was a dispute going on. Mr Clark said whilst he was able to drive across the paddock, the ground at that time though dry was rough. He noticed the paddock had been ploughed and seeded. He said in his experience it would not have been possible to obtain access to Balladong House in winter because the paddock became very slippery which made it difficult to drive across.
As to obstruction of the right of way, it was contended that the construction of a shed by Mr and Mrs Elkington at the rear of lot 123 had impeded the right of way. The shed is a large colourbond structure with a verandah which was erected in April 2007. I will return later to the question of whether the shed does in fact interfere with the exercise of the right of way. For present purposes the question is whether, if there was acquiescence in the building of that shed on the part of the Davidsons it can be inferred from that that they had abandoned the right of way or at least that portion of it which could be said to be blocked by the shed.
It is noteworthy that Mr Elkington approached the Davidsons seeking their consent to the building of the shed. To some extent the seeking of such consent might be consistent with a concern about obtaining planning permission. However, it is also consistent with an acknowledgement on the part of the Elkingtons that the Davidsons had a right of way in respect of the land upon which the shed was to be built.
On 20 March 2006 the Davidsons wrote a letter to the Shire giving their consent to the building of the shed, subject to their maintaining access to the south east corner of their land by use of the right of way. I will return to the precise terms of that letter when considering the question of interference. Suffice to say that for the present purposes no inference of abandonment can be drawn from the erection of the shed. It is clear that the Davidsons, by consenting to the building of the shed did not intend to abandon the right of way or that part of it which extended beyond their entrance gate.
There was also evidence that trees had grown on the rear portion of lot 123 and in particular a line of trees roughly parallel to the boundary between lot 123 and lot 11. It was submitted on behalf of the Elkingtons that the existence of these trees made access to lot 11 from lot 123 impossible at this point and was consistent with non‑use of the right of way. There was some dispute as to the age and size of the trees. On the evidence it was far from clear that the trees made access to lot 11 impossible from any definable point of lot 123. They certainly did not prevent pedestrian access and Mrs Davidson gave evidence that such access was desired from time to time in order to attend to crops cultivated in the back paddock.
The onus of proving abandonment lies upon the defendants: Barrett v RSE Holdings Pty Ltd [1999] WASC 128. The evidence does not establish that there has been any intention on the part of either the Davidsons or Mrs Morgan, as the previous owner of Balladong House, to abandon any portion of the right of way. Each had expressed a contrary intention and, indeed, had cited examples of exercising their right to access the rear of lot 123. It might well be said that this right has been rarely exercised, however that could not justify any inference of abandonment.
The availability of an alternative route to Balladong House from Parker Road could not support an inference of abandonment either. The evidence indicates that this alternative route is of poor quality and has thus rarely been used. The mere possibility of an alternative route does not lead to a conclusion of abandonment.
As to the existence of obstructions, the erection of the shed specifically did not involve any intention on the part of the Davidsons to abandon any portion of the right of way. The existence of trees is not inconsistent with the persistence of the right of way anymore than in Treweeke a bamboo thicket and fences were considered to be inconsistent with a right of way notwithstanding non‑use for a 40 year period. Accordingly, it is not open on the evidence to conclude that the right of way has been abandoned.
Is there any other basis for modifying the easement pursuant to s 129C of the TLA?
Section 129C of the TLA permits modification or extinguishment of an easement in circumstances other than intentional abandonment. As I noted earlier, abandonment arising as a conclusion drawn from the acts or omissions of the owners (past and present) of the dominant tenement is equivalent to common law principles and is covered by s 129C(1)(b). However, s 129C(1)(a) permits extinguishment, wholly or partially, where the court is satisfied that, having regard to the circumstances, the easement should be deemed to have been abandoned or to be obsolete. The use of the word 'deemed' in this context suggests that such a conclusion could be reached even though it may not be possible on the evidence to determine the intention of the owner of the dominant tenement or even despite an intention not to abandon. The subsection also permits modification where the court concludes that continued existence of the easement would impede reasonable use of the land without securing practical benefits to other persons. Finally, s 129C(1)(c) permits the court to extinguish or modify an easement where to do so will not substantially injure those entitled to the benefit of the easement.
Subsection 129C(1)(a) requires the court to be satisfied that by reason of a change in the user of any land having the benefit of the easement or a change in the character of the property or the neighbourhood or any other circumstances that the court may deem material, the easement ought to be deemed to have been abandoned or to be obsolete. In some cases the view has been taken that the word 'obsolete' related to whether the grant in question had any value: Chatsworth Estates Co v Fewell [1931] 1 Ch 224. In other cases the question has focussed more on whether the original purpose of the grant could still be achieved: Knight v Simmonds [1896] 2 Ch 294, 297. More recently, however, in Durian (Holdings) Pty Ltd v Cavacourt Pty Ltd (2000) 10 BPR 18,099, 18,100 Mason P held that the word 'obsolete' in a similar provision in the New South Wales legislation meant either that the object of the easement had become incapable of fulfilment or that it served no present useful purpose.
In Long v Michie Austin J said that even applying the Durian test the issue had to be approached cautiously because whilst a provision of this type confers a power to abrogate existing rights, that power is not available for the purpose of expropriating private rights for profit: at [28] and see Re Henderson's Conveyance [1940] Ch 835, 846 (Farwell J). Similarly in Smith v Australian Real Estate and Investment Co Ltd [1964] WAR 163 Negus J said at 167:
Speaking generally, I feel sure Parliament did not, when enacting section 129C intend the court to allow what is in effect the expropriation of private property, namely, the right of a landowner to the benefit of a restricted covenant, without compensation, unless completely satisfied that the benefit is valueless to such owner for a practical standpoint and does not secure him any practical benefit.
On behalf of the Elkingtons it was submitted that since the creation of the right of way in 1948 there had been a substantial change in the use of the properties now consisting of Bridge House, Balladong House and Balladong Farm such that the right of way had become obsolete. It was submitted that there had been a change in the prevailing use of the properties as they existed prior to 1948 as compared to the current situation. In particular, reference was made to other means of access, non‑use, physical changes, obstruction by fences and established trees and the requirements and needs of the respective users.
In fact there was very little evidence as to the use to which the respective properties had been put in 1948 other than that they were originally all part of the Balladong Farm estate. Some emphasis was placed upon the fact that the entrance to Balladong House was part way along lot 123 and it was suggested that there was no evident purpose for Balladong House to have a right of way beyond that point.
The implication was that insofar as the right of way existed beyond the turn off it was one that had been created for the benefit of Balladong Farm and not Balladong House and had not been used by the owners of Balladong House. There are two obvious difficulties with this suggestion. Firstly, there was no evidence to suggest that the driveway access to Balladong House had always existed at the point that it now does. Nor was there any evidence to support a conclusion that the only purpose of the right of way was to enable access from Balladong House to Redmile Road by the shortest possible route.
As has been previously noted, where a right of way exists along a boundary contiguous with the servient tenement it is open to the dominant tenement to change the route of the right of way and to seek access at some other point. Furthermore, consideration has to be given to the fact that these properties are, and have always been, in a semi‑rural setting. It cannot be assumed that the right of way has only ever served the purpose of obtaining access to the house. It is clearly conceivable that the right of way may also have been used to facilitate access to other parts of lot 11 by, for example, agricultural equipment. There is some evidence of this from Mrs Morgan and the Davidsons (referred to earlier). That use may have been limited in recent years, but not such as to be described as obsolete.
The second impediment to the Elkingtons' arguments is that it would be contrary to the principles set out by the High Court in Westfield if the clear and general terms of the easement were to be read down by having regard to extrinsic evidence as to the supposed intentions of those who created the easement or the purpose which the easement was said to serve in 1948. The power in s 129C(1)(a) is not a general power to rewrite the easement to reflect what is now thought to be appropriate. In order to justify the exercise of the power in s 129C(1)(a) there has to have been a change in user, a change in the character of the neighbourhood or some other material circumstance that would justify extinguishment or modification. In that regard this case is plainly distinguishable from Oleander Nominees Pty Ltd v Owners of Lakeside Villas [2002] WASC 255.
The onus is on the party seeking that the easement be modified or extinguished to satisfy the court of such changes or circumstances. In fact, there is very little evidence of any change or of circumstances that could enliven the power. The only change of any significance of which there is evidence was the subdivision of Balladong House and Balladong Farm in 1975. However, that subdivision alone does not, in my view, satisfy the requirements of s 129C(1)(a). There was no evidence as to any significant change in use. Nor was there evidence that the subdivision was a reflection of any such change. No conclusions regarding the utility of the right of way flow from the subdivision because, for example, neither Balladong Farm nor Balladong House were landlocked either before or after the subdivision.
The Elkingtons sought to rely upon the fact that the right of way once possessed by Balladong Farm had been extinguished by court order. As mentioned earlier, the owner of Balladong Farm had initially also been joined in these proceedings. By consent an order was made extinguishing the right of way formerly possessed by Balladong Farm. That, it was suggested, represented a change in the user of land or in the character of the neighbourhood. It is difficult to see why this would be so. The easement to which lot 11 is entitled over lot 123 is not dependent upon the co‑existence of a right of way over the same land by lot 12. Obviously, two neighbouring owners may both possess a right of way over land of a third but the geographical locations of their land may mean that the right has a different significance and serves different purposes. Even though the right in each case may be similarly described, they are in fact different rights. In my view it does not follow that because the right of way of Balladong Farm has been extinguished that the circumstances of the neighbourhood have changed such as to justify a conclusion that the right of way of Balladong House has become obsolete.
As to whether continued existence of the easement would impede reasonable use of lot 123 without securing practical benefits to other persons, it seems to me to be important to distinguish between the conduct of the parties and what the easement actually permits. In their evidence Mr and Mrs Elkington complained of Mrs Davidson entering lot 123 other than for carriageway purposes and thereby infringing their privacy. I accept that on at least one occasion Mrs Davidson has accessed and remained on lot 123 in the mistaken view that she is entitled to do so for any reason, rather than only when exercising a right of way across the land. I will return to this subject later in relation to the question of alleged interference. On the other hand the Elkingtons have taken the erroneous view that only the Davidsons personally, as the registered proprietors of Balladong House, are permitted to use the right of way.
I do not accept that use of the right of way by tradesmen and visitors to Balladong House impedes the reasonable use of lot 123 by the Elkingtons. Indeed, the evidence is that the existence of the right of way has not impeded the Elkingtons from fencing lot 123, building a shed on it, using the driveway or exercising their dogs on it. As to any lack of practical benefit to the Davidsons, I cannot conclude that use of the right of way through the rear portion of lot 123 would not be beneficial to them. As I have noted, there is evidence, which I accept, that it affords convenient access to the back paddock and the bore. Nor do I consider that reasonable use of the right of way for that purpose would necessarily infringe the privacy of the Elkingtons or impede their reasonable use of the land.
Finally, on this issue, the Elkingtons rely on s 129C(1)(c) and submit that there is nothing to suggest that a modification of the right of way to extinguish it beyond the gate to Balladong House will substantially injure the Davidsons with respect to any entitlement that they have. Whether a partial extinguishment would or would not amount to substantial injury to the owners of Balladong House depends upon whether use of a right of way beyond the gate to that property has any value. The onus is upon the Elkingtons to show that the right in question has no value, or at least no substantial value, such as to justify the exercise by the court of its discretion under s 129C(1)(c).
The purpose of s 129C as a whole is to enable covenants which have no practical utility to the dominant land to be removed so as to clear the title of the servient land. In this context a substantial injury is one that has real and present substance though it need not necessarily be large or considerable: Re Mason and the Conveyancing Act (1960) 78 WN (NSW) 925, 928; [1962] NSWR 762, 746.
For the reasons I have stated, it is not possible to infer from the words of the grant that the right of way was only for the purpose of affording access to the house on lot 11 by way of the gate that presently exists. Furthermore, the Davidsons have asserted that the right of way beyond their gate does have value and utility to them in affording access to their rear paddock. I do not consider that on the available evidence I would be justified in rejecting those assertions. Accordingly, I am not satisfied that there is a proper basis for the exercise of the court's discretion to modify the easement in the way sought by the defendants.
As to the claim by the Elkingtons that the easement should be modified to require the Davidsons to contribute to maintenance costs of the right of way, it cannot succeed for the following reasons.
The easement does not impose a burden upon the dominant tenement, rather it confers a benefit. The exercise of that benefit comes with an obligation to build and maintain the means by which the right of way is to be exercised. It has long been accepted that the onus to repair the means by which a right of way is exercised is on the dominant owner: Taylor v Whitehead (1781) 2 Dougl 745; (1781) 99 ER 475, 477; Spear v Rowlett (803).
The difficulty in the present case is that part of the driveway is shared. This would normally be dealt with by way of an amicable agreement between reasonable neighbours to share the costs. The problem with imposing any condition by modifying the easement to incorporate an obligation on the part of the dominant tenement to contribute to costs is that the right of way as it presently exists may vary over time. The owners of Balladong House may utilise an alternative entrance without abandoning their right to use the right of way. On the other hand, the owners of Bridge House may create an alternative entrance of their own from Redmile Road. Any arrangement sought to be made by the court could be superseded by changes in the future. Accordingly, any conditions, rather than resolving disputes, might be the source of future conflicts. The purpose of an easement is to provide rights to a dominant tenement. It is not to ensure that neighbours act reasonably.
Has there been interference with the right of way?
Interference with the exercise of a right of way may constitute actionable nuisance. However, any such interference must be substantial. In Pettey v Parsons Lord Cozens‑Hardy MR said at 662:
It must not be forgotten that this is not a highway; it is a private road. It must not be forgotten that the rights of interference with a right of way are by no means the same in the case of a public highway as in the case of a private road. In a public highway any obstruction is a wrong if it is appreciable. That I think is the recognised distinction. Any appreciable obstruction in a highway can be prevented by indictment or otherwise, but in the case of a private right of way the obstruction is not actionable unless it is substantial. There must be a real substantial interference with the enjoyment of the right of way.
In that case the owner of a servient tenement had erected a gate which the owner of the dominant tenement alleged was an interference with the exercise of his right of way. It was held that the owner of the servient tenement was entitled to erect a gate and that doing so did not involve a substantial interference with the right of the dominant owner provided that the dominant owner was able to obtain access through the gate at reasonable times.
Similarly, in Saggers v Brown (1982) NSW ConvR 55,054; (1981) 2 BPR 9,329 Rath J held that the erection of a fence along a right of way was not necessarily interference and that the grant of a right of way did not confer a right to go upon the land of the servient tenement from any part of the dominant tenement adjoining it. The owner of the servient tenement is entitled to fence a right of way for the purpose, for example, of gaining security for his land provided that he does not, by doing so, substantially interfere with the right of way of the owner of the dominant tenement: Butler v Muddle (13,984); Dunell v Phillips (1982) 2 BPR 9,517, 9,522.
In Johnstone v Holdway [1963] 1 QB 601 the servient owner erected a gate with a spiked chain and combination lock to exclude members of the public but offered the dominant owner the combination for the lock. The dominant owner sued for a mandatory injunction to remove the spiked chain and failed. The English Court of Appeal held that there was no substantial interference with the right of way because the dominant owner had the means of access through the gate.
There is no obligation on a servient owner to maintain the full width of the easement so long as there is no substantial interference with a reasonable exercise of the right of way. In Powell v Langdon (1944) 45 SR (NSW) 136 Roper J held that a gate and low wall erected by the servient owner on a right of way over a strip of land 20 feet wide leaving an opening of 8 feet 2 inches was a real and substantial interference notwithstanding that it was passable because it constrained manoeuvrability. His Honour nonetheless thought that a 10 foot opening would have been sufficient.
There may be an actionable obstruction even though no one is in fact obstructed, however there must be something that will have the effect of hindering passage if anyone wanted to pass: Ewing Phosphate Co v Driver (1903) 23 NZLR 108, 111 (Williams J). It must be noted that the servient owner is entitled to do as he pleases on the land that he owns so long as it does not interfere with a reasonable right of carriageway: Trewin v Felton [2007] NSWSC 851; (2007) 13 BPR 24,579.
The issue of reasonableness in terms of the degree of interference is to be assessed using commonsense, taking into account all relevant factors in each case including the ideas of reasonable people, the nature of the location of the land, as well as the character, duration and time of the interference and the effect of the interference: Oldham v Lawson (No 1) [1976] VR 654, 655 (Harris J).
Because a complaint of private nuisance raises a cause of action in tort, actual damage must usually be proved. This is subject to an exception, however, where the interference is with an easement or to a right of access: Walsh v Ervin [1952] VLR 361, 364. The exception is granted conceptually on the proposition that an easement holder has an absolute legal right to the enjoyment of the easement rights so that any infringement of that right will imply damage although the extent of the damage may only be nominal: Staley v Pivot Group Pty Ltd [No 6] [2010] WASC 228 [93].
The usual remedy for private nuisance is an injunction and may also include an order for damages. In appropriate circumstances declaratory relief may be available: Mantec Thoroughbreds Pty Ltd v Batur [2009] VSC 351; [2009] V ConvR 54,767. When considering whether there has been a substantial interference with the right of way it must be evident from the evidence that interference with the exercise of that right has or will occur by reason of the alleged obstruction. The court should not engage in speculation.
In the present case the plaintiffs allege that interference has occurred over several years and by different means. Paragraph 13 of the re‑amended statement of claim states:
13.The Defendants have impeded, obstructed or interfered with or attempted to impede, obstruct or to interfere with the Plaintiffs' use of the Right of Way.
Particulars
(a)The Defendants have constructed a shed on the South East end of the Right of Way which impedes and obstructs the Plaintiffs' use of the South East end of the Right of Way and access to the South East part of Balladong House and to Balladong Farm.
(b)On or about the month of April 2006 the first named Defendant advised the first named Plaintiff that the Plaintiffs' use of the Right of Way was limited to the Plaintiffs' sole personal use and that the Defendants intended to put a gate across the Right of Way so that only the Plaintiffs could use the Right of way so as to exclude use of the Right of Way by the Plaintiffs' tenants, servants, workmen and visitors.
(c)On 14 April 2007, while the Plaintiffs were lawfully using the Right of Way, the Defendants told the Plaintiffs to get off the Defendants' land and physically assaulted the Plaintiffs.
(d)In early 2007 the first named Defendant threatened to put a chain across the Right of Way to prevent the Plaintiffs or their tenants, servants, agents or workmen using the Right of Way.
(e)In August 2007 the Defendants erected a sign at the entrance to the Right of Way which stated 'Bridge House Access Only' and constructed a gate across the Right of Way;
(f)The Defendants:
(i)refused to remove the sign particularised in (e) above;
(ii)asserted the shed particularised in (a) above was lawfully constructed on the Right of Way;
(iii)refused to remove the shed and concrete pad on which the said shed was erected;
(iv)purported to limit the Plaintiffs' personal use of the Right of Way to the area between the entrance to the Right of Way and the driveway of Balladong House;
(v)asserted that all visitors to Balladong House must access Balladong House from Parker Road across a farm paddock otherwise the Defendants would lock the entrance gate leading to the Right of Way.
(g)In or about November 2009, the Defendants installed a wire fence/gate at the entrance gates to Balladong House impeding access and egress onto the Right of Way.
(h)In early October 2009 while the second named Plaintiff was walking on the Right of Way, the first named Defendant ordered the second named Plaintiff to get off the right of Way and asserted that the second named Plaintiff had no right to be on the Right of Way.
(i)The Plaintiffs repeat the particulars (a) to (h) above and say the effect of said conduct in whole or in part impeded, obstructed, or interfered with the Plaintiffs' use of the Right of Way.
As regards [13(a)] I have referred earlier to the construction of the shed. In April 2007 the Elkingtons constructed a shed on an existing concrete pad at the rear of lot 123. The pad existed because Mr Hamersley, a previous owner of Bridge House, had built a shed at that location some time between 1998 and 1999. That shed was subsequently removed as a result of a complaint by the owner of Balladong Farm. In early 2006 Mr Elkington sought the consent of his neighbours to the building of a shed at the same site. The owner of Balladong Farm signed a letter giving her consent dated 9 January 2006.
By letter dated 20 March 2006 the Davidsons wrote to the Shire of York stating as follows:
With respect to the proposed construction of a shed on Lots 10 and Lots 123 of 1 Redmile Road, York, we the owners of Lot 11 (Balladong House) have no objection to this development providing access is maintained to the south east corner of lot 11 along the Right of Way.
This condition will enable entrance along the carriageway (which provides right of way to Lot 11) to the south east corner of Lot 11.
The Davidsons assert that this shed, now completed, interferes with the exercise of their right of way. Construction of a building on land burdened with an easement will not necessarily constitute an interference with a right of way. Whether it does or not is a question of fact. In the present case, as the diagram attached to these reasons illustrates, the shed is at the further end of lot 123. It is not obvious that it obstructs entry to any part of lot 11 that could reasonably be required from lot 123. I should note that access to Balladong Farm from lot 123 is not a practical possibility as there are fences and the rear of stable walls at this point. Nor is there any obvious need to access Balladong Farm from lot 123, even assuming the farm owner permitted it (of which there was no evidence).
The only evidence as to the use of the right of way beyond the gate to Balladong House is that provided by Mrs Morgan and Dr and Mrs Davidson. It is not possible to infer from that evidence that such access that has occurred in the past would be prevented by the existence of the shed. In cross‑examination Dr Davidson conceded that the shed did not prevent the type of access to their back paddock that they had previously availed themselves of:
Now, can you see how you can walk through down the right‑hand side of the shed and get past there right to the very corner?‑‑‑Yes.
You say your problem is that you can't drive a tractor down there. Is that what you say, to access your lower paddock?‑‑‑Yes.
Previously when you went down there, and you've told us you accessed it by the tractor, you just pushed the fence down before where the shed is and you accessed it there, didn't you?‑‑‑Yes.
So why can't you continue to do that?‑‑‑I could.
So it hasn't prevented you from access to the lower part of your paddock, has it?‑‑‑Well, it has because our paddock goes another 46 metres beyond that point.
Yes, but as before where you went in earlier up the fence line before the shed, you could do that again?‑‑‑Yes (ts 464 ‑ 465).
The consent by the Davidsons to the building of the shed by their letter of 20 March 2006 also supports an inference that they did not consider that such a shed would interfere with the exercise of their right of way. Mrs Davidson sought to qualify the basis upon which consent was given by noting that the letter refers to erection of a shed on lots 10 and 123 and stated that her intention was to agree to a shed which was to the edge of lot 123 and traversed the boundary between that lot and lot 10. She said it was not her intention to consent to a shed in the location of that which presently exists. I cannot accept that any such intention is evident from the words of the letter. Indeed, given the pre‑existence of the concrete pad it would be difficult to draw any inference but that all parties were aware that the shed was to be built in that location. In any event, taking into account all of the evidence, I am unable to reach a conclusion that the shed as presently located substantially interferes with any reasonable exercise by the Davidsons of the right of way.
As regards [13(b)] it will be necessary to provide some details of the history of the disputes between the parties. Mrs Davidson gave evidence that shortly after the Elkingtons purchased Bridge House, Mr Elkington approached her and said 'If you want to keep your lamp post and your letterbox and your tennis court, you must write me a letter to ask me if you can keep them'. This appears to have been a reference to items that were located on lot 123. The tennis court appears to have been a bitumen pad that straddled the boundary between lot 123 and lot 11, did not appear to be in current use and had been at that site for many years, possibly predating the subdivision of the properties.
The lamps and letterbox were not removed and the Elkingtons then instructed solicitors who wrote to the Davidsons on 6 July 2006 requesting that those items be removed by 27 July 2006. The Davidsons then also instructed solicitors who responded by claiming that the lamps and letterbox were not on land owned by the Elkingtons and would not, therefore, be removed. Whilst the request for the removal of these items is not claimed as being part of the interference, I should note that insofar as these items were located on lot 123 the easement gave no right to the owner of lot 11 to erect and leave in place such items. This exchange appears to have been one of the early causes of bad blood between the parties.
There had also been an incident in late 2005 when the Davidsons were having some plumbing work done at Balladong House. The plumbing contractor deposited a load of yellow sand on lot 123 near the gate to Balladong House. Dr Davidson said this occurred because the contractor had difficulty negotiating the trees along the drive to Balladong House. Mr Elkington complained about the presence of the sand and asked why his permission had not been sought. Dr Davidson said he apologised and the sand was moved the following day. I note that the easement did not permit this sand to be unloaded and left on lot 123 and Mr Elkington was within his rights to question its placement there.
Mrs Davidson said that in May 2006 she was using the right of way by walking towards her front gates having been to the Balladong Farm end of lot 123. She said as she approached the turnoff to Bridge House Mr Elkington came out of his house and walked directly towards her in what she felt was a threatening manner and told her to get off his land. She said she replied that there was a right of way and Mr Elkington responded by saying that he was going to cancel the right of way. Both Dr and Mrs Davidson also gave evidence that around this time Mr Elkington told them the right of way had effectively expired because the wording of the easement included the words 'for the time being'.
In late April or May 2006 Mr Elkington moved the white pipe fence located between Bridge House and Balladong House and relocated it along the boundary between lot 123 and lot 11. His right to move the fence was challenged by Mrs Davidson who asserted an intention to claim adverse possession of the encroached land. It is not asserted that this movement of the fence involved any interference with the right of way. However, it did contribute to the acrimony between the parties. The movement of the fence will be dealt with in more detail in regards to the issue of adverse possession.
Mr Elkington subsequently had further correspondence with the solicitors for the Davidsons. In an email of 10 April 2007 Mr Elkington claimed that Mrs Davidson had come onto the construction site of the shed, harassed the builders and taken photographs of the shed and the builders. Mr Elkington stated that he would not tolerate interference with his lawful activities on his property. He then stated:
Your clients use our land as the access point for their property and we have not interfered with them doing so until now. They have a notation on their CT that they have a right of carriageway over our land. Their title is not mentioned on our title and for various reasons it can be argued that they do not have [a] right of carriageway. Until now we have not pushed this issue however if they believe they have [a] right of carriageway over our land we are now enacting the original wording when the right of carriageway was issued. I am sure that you have a copy of our title so you can look up the wording. This right is given to specific people, the proprietor or proprietors and not the usual range of people. These words specify who can use our land. At the moment that would be Angus and Sylvia Davidson only as they are the proprietors. At the same time we reiterate that it is arguable that they in fact do not have any rights. Please inform your clients that no other person is allowed access to lot 11 from our land, they are to use the access to lot 11 from Parker Road which is the designated access point. Should your clients abuse this privilege then we will put a chain across our bridge and your clients also will be denied access.
At around the same time Mr Elkington wrote to the Shire regarding what he understood was a proposed bed and breakfast business at Balladong House. He asserted in emails to Shire officers that he had legal advice that he could refuse guests' entry on the drive as the privilege of using the private right of way was for the proprietors only.
In evidence Mr Elkington conceded that he had told Mr Tidman, a previous owner of Balladong Farm, that neither Balladong Farm nor Balladong House had a legal right of carriageway because he had been told by Landgate that the right of way was cancelled in 1975. He also accepted that he had requested a number of tradesmen who were attending on Balladong House to use the alternative entrance from Parker Road.
I accept that Mr Elkington had a genuine belief that there was a question in regards to whether the right of way had persisted and whether it extended to people other than the registered owners of lot 11. He was, however, in both of these respects, mistaken. In my view, notwithstanding that the title to Bridge House referred to the right of way as belonging to land comprised in a superseded title that had previously included both Balladong Farm and Balladong House, Balladong House had inherited the right to that easement and that was reflected on its own title. I am also of the view that the words used to describe the easement were sufficient to incorporate the Ninth Schedule of the TLA. Accordingly, whilst the right was one possessed by the registered proprietors of lot 11 it was not, as Mr Elkington appears to have believed, limited only to the use by those proprietors. The easement permitted the right of passage of the proprietors 'tenants, servants, agents workmen and visitors'.
However, a mistaken belief as to the existence or extent of a right of way by the servient tenement owner could not of itself constitute interference. The assertion of that belief to others may constitute interference depending upon the effect of that assertion. It is apparent that the Davidsons never accepted the Elkingtons' view of the right of way. They maintained the existence of a right for them and their invitees to use the Redmile Road entrance and continued to instruct such persons to use that entrance. Those workmen who were contacted by Mr Elkington do not appear to have been deterred from using the Redmile Road entrance where it was necessary to do so.
Mr Michael York, the rural contractor referred to earlier, entered into a verbal agreement with the Davidsons to crop the paddock at Balladong House on two occasions, in 2008 and 2009. He also did so on one occasion when Mrs Morgan owned Balladong House. Mr York recalled receiving a telephone call from Mr Elkington requesting that when he came to Balladong House to crop the land that he access the property from the Parker Road entry because there was a dispute regarding other access. The request occasioned no difficulty on Mr York's part and he was content to comply.
Mr Bevan Meredith is an electrician who was engaged by the Davidsons to carry out work on Balladong House in about September 2007. He said on the day he attended Balladong House Mr Elkington spoke to him and said words to the effect 'you should use Parker Road'. He said on another occasion Mr Elkington shook his finger at him whilst Mr Meredith was near the gateway to Balladong House. Mr Meredith was not deterred and stated that he 'just kept using the right of way entrance to Mr and Mrs Davidsons' property'.
Earlier I had made reference to Mr John Clark, a carpenter who undertook some work at Balladong House. He said that on one occasion Mr Elkington telephoned and suggested that the next time he came he should use the Parker Road, rather than the Redmile Road, entrance. He accepted in cross‑examination that this was in the nature of a request. He had used the Parker Road entrance once following that. Later, he was asked by Mrs Davidson to come again and to use the Redmile Road entrance, which he did. He agreed that on that occasion the Elkingtons did nothing to stop him using that entrance.
As to [13(c)], an altercation occurred on lot 123 near the shed on 14 April 2007. The Davidsons' evidence is that Mrs Davidson decided to inspect the shed and for that purpose walked from her gate along the right of way. She said she was confronted by the Elkingtons who held out their hands to obstruct her passage. She said she was pushed by Mr Elkington and called out to her husband. Dr Davidson said he attended at the scene in order to assist his wife. The Davidsons alleged that Mrs Elkington kicked their dog and that when Dr Davidson went to assist the dog he was punched and pushed by Mr Elkington. Mrs Davidson said she then decided to wait for the police even though she had been asked to leave. She said she wanted the police to see her 'on the right of way'.
The Elkingtons' account of what occurred is very different. They say that a builder was present at this time constructing the shed. Mrs Davidson walked towards them and Mr Elkington told her to go home. They say Mrs Davidson walked towards Mrs Elkington who had her arms out from her sides. They say Mrs Davidson grabbed one of Mrs Elkington's hands and yanked it. They say Mrs Davidson then called out to her husband that her hair was being pulled. The Elkingtons deny ever pulling Mrs Davidson's hair. Mr Elkington asked his wife to call the police and Mrs Davidson then walked towards him. He said Mrs Davidson walked into him and then called out to her husband 'come quick, he's manhandling me'. Dr Davidson attended and Mr Elkington told him to take Mrs Davidson home. He said Dr Davidson said 'she's entitled to be here, it's our land'. He said Dr Davidson went up to the shed site where Mrs Davidson was and talked to her. After a short time he went up to Dr Davidson, who appeared agitated and Dr Davidson then hit him with his right fist under his left eye. Mr Elkington said he blocked further punches from Dr Davidson with his hands. He said Mrs Davidson came up from behind him and began punching his back and that he called out to Mrs Elkington to call the police again. He said he then grabbed Dr Davidson by the arm and swung him around and this caused Dr Davidson's shirt to rip. He then pushed Dr Davidson away. Mrs Elkington returned and said that the police would be there in 20 minutes and Mrs Davidson then went and sat on a log under the shed's skillion roof. Some time later a police officer arrived and asked Mrs Davidson to go home. She initially refused to do so until she was threatened with arrest.
Dr Davidson said that he left the scene after allegedly being assaulted by Mr Elkington and took his dog to a veterinarian. There was some evidence of attendance at a veterinarian in respect of the dog, although no other witnesses were called who could confirm the existence or cause of any injuries to the animal. There were also some photographs of bruises on Dr Davidson's body and his torn shirt. There was no expert evidence in regards to the injuries and they are at least as consistent with the version of events described by the Elkingtons as that described by the Davidsons. In these circumstances the evidence of what occurred on that day consists almost entirely of the conflicting versions of the Davidsons and the Elkingtons.
This alleged assault is relevant only to the extent that it involves some interference with the legitimate exercise of the right of way. I am not persuaded that Mrs Davidson was exercising a right to pass through lot 123 for the purpose of accessing her land on this occasion. Indeed, on her own evidence she was intending to inspect the shed. It is possible that the ancillary rights necessarily connected to a right of way include a right to inspect and maintain an access route. However, that does not seem to me to be what Mrs Davidson was seeking to do on this occasion. Rather there seems to have been an intention to assert a right to simply be upon the land in defiance of the Elkingtons. This is consistent with Mrs Davidson's conduct when the police arrived. At that time she was still sitting on the log and asserted a right to be there. However broadly the right of way is construed it does not confer a right to squat on the land in defiance of the owner.
Whatever the truth in regards to the physical altercation, and in my view the likelihood is that both Dr Davidson and Mr Elkington engaged in some physical pushing and shoving, I am not satisfied that the evidence establishes that this was an interference with a legitimate exercise of the right of way. For this reason it is unnecessary to make detailed findings as to who assaulted whom, even if this were possible based on the evidence before me.
As regards [13(d)], Mr Elkington did, in the email of 10 April 2007, express an intention to put a chain across the bridge if the Davidsons, to use Mr Elkington's words, abused the privilege of the right of way, as he saw it. There is, however, no evidence that a chain across the bridge was ever put in place. There was evidence from Mr Terrence Kean that 'a few years ago' he had gone to Balladong House with the intention of staying there. He was an old friend of the Davidsons and had an open invitation to stay in a back room. He said that when he arrived the gates giving access to Balladong House from the driveway were shut and padlocked. He did not try to telephone the Davidsons because he did not have a mobile phone at the time. It is not clear whether the Davidsons were at Balladong House at this time or in Perth. Mr Kean did not know who had locked the gates. Mr and Mrs Elkington deny ever having locked the gates in question. On the available evidence I am unable to conclude that they did so.
Dr and Mrs Davidson also gave evidence that there had originally been signs indicating the direction to Balladong House along Redmile Road that were removed. The Davidsons subsequently located these signs at the Shire depot and Shire workers conceded that they had removed them. The implication was that the signs had been removed at the instigation of the Elkingtons but the evidence did not establish this. In any event, the signs were on public land and there is no suggestion that it was not open to the Shire to remove them. The removal of these signs is not asserted as being an act of interference with the right of way.
As regards [13(e)], in August 2007 the Elkingtons erected a sign at the entrance to the right of way near Redmile Road which stated 'Bridge House Access Only'. They also constructed a gate across the right of way at this time. As the owners of lot 123 the Elkingtons were entitled to erect such a gate provided that in doing so they did not substantially interfere with reasonable use of the right of way. It was not necessary for them to seek the permission of the Davidsons, though in other circumstances one might expect that this would be done as a common courtesy. The evidence indicates that this gate was not locked at any time.
In my view Mr Hamersley's evidence is to be preferred to that of Mrs Morgan as he had better reason to know whether the fencing was complete having realigned the wire fence. I also note that Mrs Morgan under cross‑examination was uncertain whether the fencing was complete. That there was a gap in the fencing along the boundary of lot 123 would also appear to be consistent with bore equipment having passed over the boundary in this vicinity during Mrs Morgan's time.
Mr and Mrs Elkington gave evidence that the gap in the fencing at that point remained in existence at the time that they purchased Bridge House. Dr and Mrs Davidson denied this. It was unclear from photographs taken at the time Mr and Mrs Elkington first purchased the property as to whether the fencing was complete or not. Perhaps, more accurately, given that the onus is upon the plaintiffs to establish their claim to adverse possession it would be correct to say that the photographs do not provide support for the existence of a complete fence.
There was also said to be a gap in the fencing between the Redmile Road end of the white pipe fence and the bridge over Bland Brook. At that point the white pipe fencing passed into thick prickly bushes. Mrs Elkington conceded that any attempt to pass at this point would be very difficult. I place no reliance upon this gap as it would seem to me on the available evidence that the bushes provided a continuation of the enclosure. The evidence indicated that these bushes were subsequently removed by Mr Elkington in 2006 at about the time that he moved the pipe fence to the boundary.
The ability of the white pipe fence to exclude other persons assumes that it was not possible to pass it at either end. In fact there was no fencing along the northern boundary of lot 11 which runs along the creek. Mrs Morgan said she did not fence this boundary as she owned land on the other side of the creek and was content that her dog could not escape in that direction. However, the land bordering either side of the creek is a reserve owned by the local Shire. After the Davidsons purchased Balladong House the Shire approached them with a view to undertaking work along the creek to facilitate a public walking track. For this reason they were asked to remove some garden decorations and equipment that were on the reserve. Given the lack of fencing on the northern side of lot 11 there would appear to have been no impediment to entering the encroached land from that direction.
As I have noted, fencing is only one, and not necessarily a decisive factor, in considering whether adverse possession has been established. However, it is a factor upon which the Davidsons have placed particular reliance in their adverse possession claim. I am unable to accept that the fencing was complete around the encroached land for the period of 12 years preceding 2006. In particular, I accept the evidence of Mr Hamersley that there was a gap in the fencing between the southeast end of the white pipe fence and the wire fence that he realigned.
There is another factor which counts against the Davidsons' claim to adverse possession. Mr Hamersley gave evidence that at the time he was in dispute with the owner of Balladong Farm regarding the shed, there was a proposal by him to realign the right of way. The previous shed, which is referred to by Mr Hamersley, was constructed in about 1998 to 1999. The then owner of Balladong Farm objected to the shed and demanded that it be removed. She did so because she claimed that it impeded her right of way. Mr Hamersley had a survey undertaken to effect a realignment of the right of way. The proposal was that the right of way would turn onto lot 11 around the shed. Rather than create a new easement over lot 11 the proposal was that the titles of lot 123 and lot 11 be adjusted so that lot 11 would relinquish a portion of its land to lot 123 for the purposes of the right of way.
Mr Hamersley said he discussed this proposal with Mrs Morgan, the then owner of Balladong House. He said she agreed with the proposal, which also involved him relinquishing the land within the encroachment and that becoming part of lot 11. An application for a subdivision to effect these changes was completed and signed by Mr and Mrs Hamersley and Mrs Morgan in December 1999. Mr Hamersley says that this document evidenced an intention to realign the right of way such that it went around the shed and onto Mrs Morgan's land. He says that in return for Mrs Morgan losing the rear portion of her land intended for the realigned right of way he agreed that she would have the land within the encroachment. This was described as a 'land swap'.
Mrs Morgan denied that an agreement for a 'land swap' was made. She said that she always considered that the land within the pipe fencing was her own. She said that she agreed to the realignment in order to ensure peace between her neighbours and did not consider that it involved any loss or compensation on her part.
To the extent of the inconsistency between Mrs Morgan and Mr Hamersley I accept the evidence of Mr Hamersley because in my view his evidence was more credible and was supported by the documents. Whilst it may well have been Mrs Morgan's hope that the realignment would resolve a dispute between her neighbours, that could have been achieved without any change to the titles in relation to the encroachment. The only obvious reason why the encroachment would be included in the arrangements is that it provided a form of compensation to Mrs Morgan for the loss of the southeast corner of her land.
Accordingly, I accept that this 'land swap' arrangement was entered into and that it represented an acknowledgement by the owner of lot 11 of Mr Hamersley's title to the land within the encroachment. That acknowledgement is inconsistent with any intention to continue to adversely possess the land. In those circumstances the evidence cannot establish a clear 12 year period of adverse possession preceding 2006.
Conclusion
The Davidsons as the owners of lot 11 are entitled to the benefit of the right of way. Insofar as it has been suggested by the Elkingtons that the right of way is limited to the exercise of it by the registered owners of Balladong House it is clear that that is not correct. Counsel for the Elkingtons specifically abandoned any claim in this regard in final submissions.
The Davidsons are entitled to use that right of way provided that such use is reasonable. The terms of the right of way are set out clearly on the title and in the incorporated words of the Ninth Schedule of the TLA. The efficacy of making a declaration in this regard must be doubted given that nothing could be said which is clearer than those words. Furthermore, by the end of the trial, there was no significant dispute as to the terms of the easement or its meaning. The issue was whether that easement should be extinguished. For these reasons I decline to make a declaration.
For the reasons I have stated there is no basis for concluding that the right of way has been abandoned, is obsolete or should be modified. Accordingly, the Elkingtons' claims in that regard must be dismissed.
The Davidsons' claim in nuisance for alleged interference with exercise of the right of way has also not been made out and must be dismissed. For the reasons I have given, even if the actions of the Elkingtons could have been said to constitute interference only nominal damages could be awarded in any event.
The Davidsons' claim to title to the formerly encroached land by virtue of adverse possession has also not been made out and must be dismissed.
The Elkingtons' claim that an order be made that the Davidsons contribute to the maintenance costs of the bridge and driveway is misconceived. No modification to include a condition in this regard would be practical or workable.
Accordingly, for the reasons I have given, both the plaintiffs' claim and the defendants' counterclaim will be dismissed.
It might have been tempting to reach a conclusion that the right of way should be modified because that result would have had some prospect of ensuring future neighbourhood harmony. However, that would be to allow the character and conduct of the parties to improperly influence the outcome which should be dictated by the law and the evidence. I appreciate that the continued existence of the right of way as it stands presents the prospect of continuing disputes. However, whatever orders a court can make it cannot require people to act with reasonable civility and temperance.
The Davidsons have, in the past, expressed views and acted as if the right of way gave them far greater rights than it does. Conversely, the Elkingtons have expressed views and acted as if the Davidsons' rights were more limited than they are. It can only be hoped that in the light of these proceedings they can, in future, behave in a way that better reflects moderation and mutual respect.
Annexure
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: DAVIDSON -v- ELKINGTON [2011] WASC 29 (S)
CORAM: HALL J
HEARD: 9 APRIL, 3-5 MAY, 14 JUNE, 18-20 AUGUST 2010
DELIVERED : 11 FEBRUARY 2011
SUPPLEMENTARY
DECISION :22 MARCH 2011
FILE NO/S: CIV 2169 of 2007
BETWEEN: WILLIAM ANGUS DAVIDSON
SILVIA DAVIDSON
PlaintiffsAND
JOHN EDWARD ELKINGTON
IRENE JACQUELINE ELKINGTON
Defendants(BY ORIGINAL ACTION)
JOHN EDWARD ELKINGTON
IRENE JACQUELINE ELKINGTON
Plaintiffs by CounterclaimAND
WILLIAM ANGUS DAVIDSON
SILVIA DAVIDSON
Defendants by Counterclaim(BY COUNTERCLAIM)
Catchwords:
Costs - Whether appropriate to apportion on basis of who succeeded on issues - Whether any special orders appropriate - Where both parties equally successful/unsuccessful - No order as to costs - Turns on own facts
Legislation:
Legal Profession Act 2008 (WA), s 280(2)
Rules of the Supreme Court 1971 (WA), O 66
Transfer of Land Act 1893 (WA), s 129C
Result:
No order as to costs
Category: B
Representation:
Original Action
Counsel:
Plaintiffs: Mr N D C Dillon
Defendants: Mr A P Hershowitz
Solicitors:
Plaintiffs: Karp Steedman Ross-Adjie
Defendants: Kott Gunning
Counterclaim
Counsel:
Plaintiffs by Counterclaim : Mr A P Hershowitz
Defendants by Counterclaim : Mr N D C Dillon
Solicitors:
Plaintiffs by Counterclaim : Kott Gunning
Defendants by Counterclaim : Karp Steedman Ross-Adjie
Case(s) referred to in judgment(s):
Amaca Pty Ltd (formerly James Hardie & Co Pty Ltd) v Hannell [2007] WASCA 158(S)
Davidson v Elkington [2011] WASC 29
Heartlink Ltd v Jones (as liquidator of HL Diagnostics Pty Ltd (In liq) [2007] WASC 254(S)
J‑Corp Pty Ltd v Australian Builders Labourers Federation Union of Workers (Western Australian Branch) (No 2) (1993) 46 IR 301
Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129(S)
HALL J: For reasons delivered on 11 February 2011 I dismissed both the plaintiffs' claim and the defendants' counterclaim: Davidson v Elkington [2011] WASC 29. This outcome would generally result in orders for costs in favour of the successful party in each respect: Rules of the Supreme Court 1971 (WA) O 66 r 1(1). However, both parties have sought that I exercise my discretion to make costs orders that differ from this general position.
The plaintiffs' claim was for a declaration as to the existence of a right of way, damages for alleged interference with that right and injunctive relief to prevent future interference. The plaintiffs also claimed a portion of the defendants' land on the basis of adverse possession. Each of those claims failed. However the plaintiffs submit that because I found that a right of way plainly existed they were substantially successful in respect of the issue that was the basis for their claim for a declaration. It was submitted that any costs order needed to take into account that a declaration was not ordered on discretionary grounds because the existence of the right of way was not ultimately disputed and the evidence and law in respect of it were clear.
The defendants submit that whilst they should be liable to pay the costs of the plaintiffs in respect of the counterclaim, they should, as the successful party in respect of the claim, receive their costs in that regard. They also seek a number of other orders. In particular, that the plaintiffs pay the defendants the costs of an interlocutory injunction obtained by the plaintiffs. They also seek that the limits on the defendants' costs be removed in respect of getting up for trial pursuant to s 280(2) of the Legal Profession Act 2008 (WA). Further, they seek orders that would enable getting up and counsel's refresher to be claimed in respect of an adjourned hearing. Finally, they seek that costs in respect of the consideration and objection to the admissibility of the plaintiffs' expert evidence be taxed on an indemnity basis.
It should be noted that on the hearing in respect of costs both parties accepted that much of the evidence called in this matter was relevant both to the issues raised on the claim and the counterclaim. Thus, there may be difficulties in determining whether costs were incurred in one respect or the other. For this reason I raised with the parties the possibility that a fairer result may be achieved by determining which of the parties was substantially successful and the percentage of costs that party should receive.
The power exists to apportion costs to make orders relating to different parts of the proceedings where that is appropriate. Order 66 rule 1(3) provides that where a successful party has introduced an issue upon which he or she has failed and that issue has increased the costs of the proceedings the court may order that party to pay costs in respect of that issue. Order 66 rule 2(a) provides that where there are multiple causes of action, costs may be allowed to the plaintiff from those on which he or she succeeds and to the defendant on those on which he or she succeeds in the same manner as if separate actions had been brought. These provisions permit costs to be distributed according to the outcome of particular issues in the action.
There can be difficulties in assessing liability for costs on the basis of who won or lost a particular issue. Even where the issues are capable of identification, the costs relating to each may not be readily separated. Evidence may have been led which was relevant both to a successful and an unsuccessful issue. I will return to this question later.
In the present case, I identified five issues that required determination in my reasons: Davidson v Elkington [10]. They were:
1.Is there a right of way and what is its nature?
2.Has the right of way been abandoned or become obsolete?
3.Is there any basis for modifying the right of way pursuant to s 129C of the Transfer of Land Act 1893 (WA) (the TLA)?
4.Has there been inference with exercise of the right of way?
5.Did the plaintiffs acquire the encroached land by adverse possession?
Issues 1, 4 and 5 were raised as part of the plaintiffs' case, whereas issues 2 and 3 formed the basis of the defendants' case on the counterclaim. I should note that the identification of these as issues was not intended by me to reflect the areas of substantial dispute between the parties; rather it was to identify for the purpose of the reasons the matters that needed to be considered in order to reach a resolution.
The plaintiffs submit that notwithstanding that a declaration was not ordered I came to the conclusion that there was a right of way and that, accordingly, the plaintiffs were successful in respect of the first issue. They submit that this was a significant issue at the trial and justifies them receiving a substantial proportion of their costs. It was suggested that this should be in the order of 75%.
However, as my reasons make clear, whilst in the original pleadings the defendants had not conceded the existence of a right of way, by the time the matter came to trial, that was no longer an issue. Amendments were made to the defence which had the effect of specifically abandoning any claim that the right of way did not cover people other than the registered proprietors. The defendants also disavowed any suggestion that the whole right of way was the subject of any abandonment claim, rather they sought only to make that claim in respect of a portion of the right of way (in respect of which a modification was sought in the alternative).
As I noted during the hearing on costs, the court has no interest in making declarations that are hypothetical in nature if there is no issue between the parties. Furthermore, the existence of the right of way was readily apparent from the registered titles. It is true that the matter only became a non‑issue at the commencement of the trial. Accordingly, the plaintiff may have been put to some expense in seeking to prove the existence and continuation of the right of way. However, in the event, the evidence that was necessary in that regard was also required on the trial in order to establish the nature of the right of way. Furthermore, that evidence was very small in compass consisting of copies of the relevant certificates of title and other registered documents. Accordingly, I do not accept the submission that the issue of whether the right of way existed was a major one in these proceedings or that any significant amount of costs was incurred in respect of it.
Returning then to the substantial issues at trial, they were, on behalf of the plaintiffs, whether there had been interference with the right of way and whether they were entitled to a portion of the defendants' land by virtue of adverse possession and, on behalf of the defendants, whether a portion of the right of way had been abandoned or become obsolete or, alternatively, whether the right of way should be modified to exclude that same portion.
The power of the court to depart from the general rule that costs follow the event and instead adjust the costs by reference to the failure of a generally successful party on specific and particular issues is well established: Amaca Pty Ltd (formerly James Hardie & Co Pty Ltd) v Hannell [2007] WASCA 158(S) [6]. It is, however, necessary to identify discrete and severable issues, the litigation of which has increased the costs of conducting the proceedings. The exercise of this power should be approached broadly and as a matter of impression and without an attempt at 'mathematical precision', which is likely to prove illusory: Amaca [6] and J‑Corp Pty Ltd v Australian Builders Labourers Federation Union of Workers (Western Australian Branch) (No 2) (1993) 46 IR 301.
Applying those principles to this case, what is suggested by the plaintiffs is that, although the defendants were generally successful in regards to the claim, any award of costs to the defendants in that respect should be reduced to take into account the discrete issue of whether the right of way existed, in respect of which it is said that the defendants failed. However, the discretion to make such an adjustment depends upon such an issue having added to the cost of proceedings in a significant and readily discernable way. Where a generally successful party has failed on only a minor issue, which did not add materially to the cost of the conduct of the proceedings, it is not ordinarily appropriate to depart from the general rule unless the conduct of the successful party in relation to that issue was unreasonable: Amaca [7]. As I have noted, whether there was a right of way was not an issue at the trial. To the extent it was an issue before that time, it was not one that added to the costs of the proceedings in a significant way. Accordingly, in my view, there is no proper basis for reducing the costs that the defendants would otherwise be entitled to in respect of the claim.
As regards the matters raised by the defence, I have reached the following conclusions. In respect of the plaintiffs' application for an interlocutory injunction that application was successful and the costs were reserved. The basis for that application was that the plaintiffs alleged that there had been interference with the exercise of the right of way and there was a reasonable apprehension that such interference would continue. Of course, the test required for the obtaining of an injunction is different to that required on the final determination of the matter. In the event, the plaintiffs were unsuccessful in their claims that there had been interference with the exercise of the right of way. In these circumstances, there is merit in the defendants' claim that they should be entitled to the costs of defending that application.
As regards the defendants' submission that there should be a special costs order in respect of the getting up of this matter, I accept that affidavits filed by the defendants show that a large quantity of work was done and the cost of that work is likely to exceed the limits under the applicable costs determination. The court has a discretion under s 280(1) of the Legal Profession Act 2008 to order the payment of costs above those fixed by a determination where it is apparent that the allowable amount is inadequate because of the unusual difficulty, complexity or importance of the matter. In this respect, the court could have regard to whether the work done was appropriate to the significance of the issues that arose in the litigation: Heartlink Ltd v Jones (as liquidator of HL Diagnostics Pty Ltd (In liq) [2007] WASC 254(S) [19]. That can mean either the significance of the issues to the parties or the significance of the issues to other prospective parties, the public or the community generally. Because this decision would ordinarily be made in advance of taxation it is a matter of impression rather than of detailed evaluation.
In written submissions the defendants relied upon a number of factors in support of their claim for a special costs order. There was reference to the trial having occurred at different stages between April and August 2010, the large number of witnesses called by the plaintiffs, the substantial number of objections taken by the plaintiffs, the limited probative value of some of the evidence adduced by the plaintiffs, the legal argument required in relation to the evidence of one witness (Mr Tidman) and the evidence adduced in relation to an alleged assault on 14 April 2007 which the defendants submitted was unreasonable and needlessly increased the costs incurred by the defendants.
I have carefully considered those matters and do not accept that together they justify a conclusion that the matter was of unusual difficulty or complexity. The number of significant witnesses was in fact small in number, being primarily confined to the parties and previous owners of both properties. Much of the evidence taken from the other witnesses was very brief and, in some cases, uncontested. The resolution of objections did not take any significant time and many were resolved by further clarifying evidence adduced from the witnesses. Some of the evidence called was of limited probative value, but this was true of both parties and does not justify a conclusion that the matter, as a whole, was of unusual difficulty.
As regard the defendants' claim that an order is required to ensure that the defendants are entitled to claim the full fee on brief contemplated by Item 20(a) of the Supreme Court Scale of Costs 2010, this is said to arise because the trial was ordered to have commenced on 9 April 2010. The circumstances of this were that on that date both parties sought to call evidence from witnesses who would not be available on the proposed trial dates. This was sought to be done by way of a de bene esse hearing. In the event, the taking of that evidence was before me and since it was known that I would be the trial judge, the simpler course was to order that the trial be taken to have commenced on 9 April 2010 and that the evidence of the witnesses therefore be evidence on the trial. As I understand it, the defendants claim that because the trial was taken to have commenced at that time, counsel's costs in respect of the fee on brief, which were incurred after 9 April 2010, could not be claimed unless a special order was made in this regard. Whilst there appears to be some superficial merit in this claim it is superseded by the order that I propose to make in this matter, which I will refer to shortly.
Finally, the defendants seek indemnity costs for costs incurred in relation to dealing with the plaintiffs' expert evidence in respect of alleged losses sustained as a result of not being able to operate a business on their land. The circumstances in this regard are as follows. The plaintiffs' claim for damages in respect of interference included an amount attributable to losses for an inability to pursue a bed and breakfast business at the plaintiffs' property. The plaintiffs' obtained an expert report from a Mr Moore in this regard. During the trial, and immediately prior to the plaintiffs' calling Mr Moore, the defendants raised an objection that an evidentiary basis for the expert opinion had not been established. Advance notice of that objection had not been given to the plaintiffs, as was required. In those circumstances, I allowed the plaintiffs an adjournment to obtain additional evidence if necessary. The parties then conferred and agreed a sum in relation to this component of the claim for damages. The defendants submit that they incurred significant costs in dealing with the expert evidence, including in respect of the adjournment of the trial and the process of conferral.
As regards the adjournment, it was necessary due to the lateness of the defendants' objection to the expert report. As regards the conferral process, I have read the defendants' written submissions and this does not appear to have been unduly onerous or complicated.
The making of an indemnity costs order is discretionary and may be used to mark the disapproval of improper or unreasonable conduct: Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129(S) [10] ‑ [11]. I note that the amount originally claimed for this component of the damages was $26,000 and the amount agreed, after conferral, was $7,500. This was not a significant issue in the course of the trial. Whilst it did result in an adjournment, the fault for that cannot be laid solely at the plaintiffs' door. In my view, this is not a matter deserving of the exercise by the court of the discretion to make an indemnity costs order.
Returning then to the appropriate orders as to costs in this case. As I earlier noted, the ordinary orders would be those that followed the outcomes: that is, that the plaintiffs pay the defendants' costs on the claim and the defendants pay the plaintiffs' costs on the counterclaim. However, the evidence is not so easily severable. Witnesses called by both parties gave evidence that was relevant, for example, both for the plaintiffs' claim for adverse possession and for the defendants' claim that the right of way had been abandoned or should be modified. Witnesses who were favourable to the party calling them in one respect were sometimes adverse to them in another respect. Evidence as to incidents that had occurred on the right of way, such as the erection of buildings or fences, were relied upon both by the plaintiffs to show interference and by the defendants to show abandonment. To make orders that each party have the costs of either the claim or counterclaim, or of the issues on which they were successful would likely result in further and costly argument.
Having carefully considered the pleadings, the transcript, the documentary evidence tendered at the trial and the submissions of the parties, my clear impression is that the respective claims of the parties contributed equally to the cost of these proceedings. No useful purpose would be served by awarding costs to each party which on being set‑off one against the other would be nullified. In those circumstances, the fair and just outcome is that both parties should bear their own costs. In coming to that conclusion I have also taken into account any costs attributed to the application for the interlocutory injunction. Accordingly, there will be no order as to costs.
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