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Davidson v Elkington

Davidson v Elkington

Case [2011] WASC 29 11 February 2011

Easements & Covenants

Adverse Possession

Statutory Interpretation

Property Law

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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
Plaintiffs
AND
JOHN EDWARD ELKINGTON
IRENE JACQUELINE ELKINGTON
Defendants
(BY ORIGINAL ACTION)
JOHN EDWARD ELKINGTON
IRENE JACQUELINE ELKINGTON
Plaintiffs by Counterclaim
AND
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Davidson v Elkington

Details

AGLC: Davidson v Elkington [2011] WASC 29
Case: [2011] WASC 29
Decision Date: 11 FEBRUARY 2011

CaseChat Overview and Summary

Davidson and Elkington were parties to a dispute regarding an easement over a parcel of land. The dispute came before the Supreme Court of Western Australia. The easement in question was a right of way that Davidson claimed to have over Elkington's land. Davidson argued that the easement had not been abandoned and was not obsolete, and that it should be modified to accommodate his current use of the land. Elkington, on the other hand, argued that the easement had been abandoned and that any modification would interfere with his use of the land. The court was required to determine whether the easement had been abandoned or rendered obsolete, and if not, whether there were grounds to modify the easement. The court was also required to determine whether the fencing of the easement by Davidson amounted to adverse possession, and whether this amounted to an acknowledgment of Elkington's title.

The court found that the easement had not been abandoned or rendered obsolete, and that there were grounds to modify it to accommodate Davidson's current use of the land. The court held that the fencing of the easement by Davidson did not amount to adverse possession, as there was no evidence of an intent to possess the land or an acknowledgment of Elkington's title. The court found that the fencing was merely a temporary measure to prevent interference with Davidson's use of the land. The court held that the easement should be modified to accommodate Davidson's current use of the land, but that this modification should not interfere with Elkington's use of the land. The court held that the modification should be reasonable and equitable, taking into account the interests of both parties.

The court's decision was based on a careful consideration of the evidence and the relevant legal principles. The court held that the burden of proof was on Davidson to show that the easement had not been abandoned or rendered obsolete, and that there were grounds to modify it. The court held that the evidence showed that the easement was still being used by Davidson, and that there were no grounds to find that it had been abandoned or rendered obsolete. The court held that the modification of the easement should be reasonable and equitable, taking into account the interests of both parties. The court held that the modification should not interfere with Elkington's use of the land, and that the fencing by Davidson did not amount to adverse possession.

The court made orders modifying the easement to accommodate Davidson's current use of the land, but ensuring that this modification did not interfere with Elkington's use of the land. The court held that the modification should be reasonable and equitable, taking into account the interests of both parties. The court held that the fencing by Davidson did not amount to adverse possession, and that there was no evidence of an intent to possess the land or an acknowledgment of Elkington's title. The court held that the easement had not been abandoned or rendered obsolete, and that there were grounds to modify it to accommodate Davidson's current use of the land.

Orders