Ellison v Marshall

[2016] WASC 122

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   ELLISON -v- MARSHALL [2016] WASC 122

CORAM:   KENNETH MARTIN J

HEARD:   5 APRIL 2016

DELIVERED          :   22 APRIL 2016

FILE NO/S:   CIV 3017 of 2015

BETWEEN:   TIA ELLISON

Plaintiff

AND

DENISTON CLIVE MARSHALL
WENDY DOROTHY MARSHALL
Current Defendants

PETER MAXWELL LAURANCE
Putative Second Defendant

JEFFREY CHARLES BURCH
MARIANNE AMY BURCH
Putative Third Defendants

Catchwords:

Practice and procedure - Joinder application as defendants - Private carriageway rights - Easement modification proposal - Interest sufficient to sustain participation in action

Legislation:

Rules of the Supreme Court 1971 (WA), O 18 r 6
Transfer of Land Act 1983 (WA), s 129C(1)(a)

Result:

Application for joinder allowed

Category:    B

Representation:

Counsel:

Plaintiff:     Mr M L Bennett

Current Defendants       :     Ms A Richmond-Scott

Putative Second Defendant  :     Mr K A Dundo

Putative Third Defendants   :     Mr K A Dundo

Solicitors:

Plaintiff:     Bennett + Co

Current Defendants       :     Minter Ellison

Putative Second Defendant  :     HopgoodGanim

Putative Third Defendants   :     HopgoodGanim

Case(s) referred to in judgment(s):

Elovalis v Elovalis [2008] WASCA 141 (S)

KENNETH MARTIN J: 

Overview

1. Mr Laurance and Mr and Mrs Burch seek to be joined as additional defendants to this action under their chamber summons filed 4 March 2016, pursuant to O 18 r 6(2) of the Rules of the Supreme Court 1971 (WA) (RSC).

2. Supporting the application were the affidavits of Ms Catherine Wheeler, filed 4 March 2016 and 22 March 2016, and the affidavit of Mr Jeffrey Burch, sworn 4 April 2016.

3. The action itself is brought by Mrs Tia Ellison as plaintiff.  Currently, the only defendants to the action are Mr and Mrs Marshall.  The Marshalls take a wholly neutral position over a prospect of adding Mr Laurance as a second defendant and Mr and Mrs Burch as third defendants to the litigation.  But Mrs Ellison opposes their joinder to the litigation as essentially being unprincipled and unnecessary.

The neighbourhood

1. At root the litigation seeks to advance for court approval a proposal by Mrs Ellison to modify what are currently existing private rights of carriageway over several strips of land, in the nature of easement rights, which are appurtenant to land she owns at 41A Saunders Street, Mosman Park (lot 57).  Those strips of land, aggregated together, form an existing carriageway - in the form of a corridor running between Saunders Street and properties lying to the northeast, at the other end of the corridor, near to the Swan River.

2. The strips of land forming the corridor are owned by different persons.  I shall refer to those aggregated strips of land as the Corridor. 

3. The Corridor forms the 'handle' of what is, overall, an existing carriageway in the form of a battleaxe. 

4. To better understand the location context for the litigation, it is helpful to examine the geographic arrangement of the five properties that occur in immediate proximity to the Corridor.

5. The image seen in Schedule A (which is attachment 'TRL-8' (page 12) to the affidavit of Ms Tanya Lavan, sworn 5 April 2016) shows the Corridor running downhill from Saunders Street (where the photo was taken) towards the Swan River at Mosman Park.  In the foreground, the property to the left is 39A Saunders Street (lot 80).  The property to the right is 41A Saunders Street (lot 57).  The image shows the current access point to the plaintiff's property at 41A Saunders Street, which is the driveway with the iron gate.

6. The image in Schedule B (which is attachment 'TRL-5' (page 9) to the same affidavit of Ms Lavan) is an aerial photograph showing the arrangement of the properties at 2004.  The image has been altered to indicate the street addresses for the relevant properties.

7. It can be seen that three properties lie to the river end of the Corridor (which is effectively a cul-de-sac). 

8. The property that is directly to the north-east of 41A Saunders Street is 41 Saunders Street (lot 58), which is owned by the current defendants - Mr and Mrs Marshall.  The adjoining property to the north-west, which is the middle property of the three properties at the river end of the Corridor, is 39 Saunders Street (lot 81), owned by Mr Laurance.  Further to the north-west is the property of Mr and Mrs Burch at 37 Saunders Street (lot 82).

9. The image in Schedule C (which is attachment 'CXW5' (page 33) to the affidavit of Ms Wheeler, filed 4 March 2016) shows a representation of the four strips of land which together comprise the Corridor and the arrangement of lots 57, 58, 81, 82 and 80.

10. The Marshalls, Mr Laurance and the Burches currently all hold and enjoy rights of carriageway up and down the full width of the Corridor to pass and to repass to and from their land (at the river end of the private carriageway) to the public road which is Saunders Street.

11. The arrangements are something of a private, historically evolved, neighbourhood curiosity in this part of Mosman Park.  They look to originate from what looks like a battleaxe block subdivision access scenario, implemented over many years and passing down over time between the successive neighbourhood property owners. 

12. At least four land owners in this neighbourhood, including the Marshalls (or their predecessors) appear to have agreed to have subjected what are narrow strips of their contiguous lands to form, combined together, the access corridor leading from Saunders Street, on a downward slope to the river end of the Corridor - where the houses at 37, 39 and 41 Saunders Street are found, at the north-eastern end of the access corridor.

The issue

1. An underlying neighbourhood controversy has arisen because Mrs Ellison, having acquired what is 41A Saunders Street (lot 57), has brought an application by originating summons of 18 December 2015 seeking approval of the court, pursuant to s 129C(1)(a) of the Transfer of Land Act 1893 (WA) (TLA), in order to modify her current easement/carriageway rights - held by her appurtenant to the land at 41A Saunders Street.

2. In broad terms, what looks to be proposed under a present application for court approval by Mrs Ellison as owner of 41A Saunders Street, is to relocate the current access/egress point of the driveway, which can be seen in the foreground at the right side of the Corridor in the image forming Schedule A to these reasons.  The proposal is to relocate the access/egress point to the north‑east, which is down the hill towards the river, and thus at the river end of the existing corridor. 

3. Currently, the land at 41A Saunders Street looks registered to hold carriageway rights over all but one of the private carriageway strips of land leading from Saunders Street down to the river end of the Corridor.  The exception is the red strip seen on the diagram which is Schedule C to these reasons (though noting the qualification below). 

4. As owner of 41A Saunders Street, Mrs Ellison also holds another carriageway right, which is the right to traverse the red marked section (as seen on Schedule C) from her existing driveway, so as to permit and facilitate access and egress to and from Saunders Street.  This traversal right is said to be shown in a purple colour on a diagram.  As I apprehend the position, this is effectively a right just to traverse across a very small section of the red strip making up the Corridor in the area of her existing driveway - in order to access and egress to and from 41A Saunders Street.  It is not a right for Mrs Ellison to traverse over the whole of the red strip.  That is a right held by Mr Laurance and Mr and Mrs Burch.  It is also a right held by the Marshalls as land owners of the red strip of land.

5. Mrs Ellison, as regards 41A Saunders Street, holds carriageway rights over the remaining strips to traverse the full length of the Corridor to its river end.

6. Beyond purple shaded traversal rights, there may be some disputation about whether or not Mrs Ellison holds any other carriageway rights over the red strip (that strip being owned by the Marshalls, as the servient tenement) seen on the plan which I have attached as Schedule C.  That is presently not necessary to resolve.

7. In short, by her s 129C(1)(a) TLA application, Mrs Ellison, by way of a proposed easement modification, seeks to alter the existing carriageway rights for 41A Saunders Street - to effectively relocate her driveway access/egress point for 41A Saunders Street, away from its existing location proximate to Saunders Street, and to a new position at the bottom (river end) of the carriageway. In effect, she desires to relocate what are the purple coloured traversal rights across a small section of the red portion of the Corridor - to a point closer to the Marshalls' residence and, necessarily, also closer to Mr Laurance's and the Burches' residences at the lower (river) end of the Corridor.

8. To achieve that objective, Mrs Ellison will need to obtain what would be new traversal rights at the river end of the Corridor, over the red (strip) section - similar in character to the traversal right held now (said to be shown in purple, albeit so small as to be not readily discernible on anything yet provided to me by way of sketch to this point), but relocated to the river end of the Corridor for 41A Saunders Street.

9. Through their counsel, Mr Laurance and the Burches express the desire to be made additional defendants to join the Marshalls in this litigation - in order to be heard to independently oppose Mrs Ellison's current easement modification proposal - for which she needs the court's approval pursuant to s 129C(1)(a).

10. Mrs Ellison, through counsel, accepts that Mr Laurance and the Burches as members of the river end neighbourhood off Saunders Street in Mosman Park, have some right to be heard as witnesses at any trial that is necessary. To resolve this dispute, she says they may there, as witnesses, fully express to the court any opposing or negative viewpoints which they hold (see reference in s 129C(1)(a) to 'changes in the character of the property or the neighbourhood or other circumstances of the case …').

11. But Mrs Ellison fundamentally contends now that it is not necessary for the Burches or for Mr Laurance to be made defendants to her action, in order for them to be so heard.  I was directed in this regard to the content of s 129C(8) concerning costs orders of and incidental to any application under s 129C, with it said there that costs are not awarded against a defendant or respondent in any event. 

12. Mrs Ellison, via counsel, says making Mr Laurance and the Burches additional defendants is unnecessary and wasteful, as the Marshalls would more than adequately articulate as existing defendants any relevant points that need to be made by way of opposition to her easement modification proposal. 

13. It would appear that as a part of her easement modification proposal associated with a relocation of her driveway access/egress point for 41A Saunders Street, some or perhaps all of the existing garden bed strip bordering the wall to that property (as is observable in Schedule A and which forms, perhaps, two-thirds of the red strip of the Corridor) would be lost. 

14. The actual width of the red strip, from the materials now before me, presents to be in the order of 2.03 metres.  Therefore, the width of the red strip (over which it seems to be said Mrs Ellison holds no easement rights, other than to traverse it to access or egress her existing driveway to Saunders Street) extends beyond the current width of the bordering garden bed seen in the image at Schedule A.

15. For their part, the Burches and Mr Laurance contend, as is the case, that they hold express rights of access and egress appurtenant to their Saunders Street properties over all the red strip section of the Corridor (coupled with their carriageway rights over all the other coloured section strips of the Corridor).  So, they say any proposed alteration (by Mrs Ellison) adversely bearing upon those existing carriageway rights, particularly any interfering with the red strip section, may affect their property rights adversely, and thereby entitles them to be heard as additional defendants in the litigation. 

16. I accept that submission, as I explain below.

17. At one point in the arguments it seemed to be suggested by reference to Schedule A that the existing garden bed forming a component of the 2.03 metre wide red strip of the Corridor had subsisted in its current form as a garden bed for many years now.  A garden bed was, therefore, not being used by any party for the purposes of use as a carriageway upwards or downwards to and from Saunders Street.  But a difficulty with that proposition, even accepting it as being hypothetically accurate for the purposes of the argument, is that the red strip of the Corridor, closest to the wall of 41A Saunders Street, extends wider than merely this garden bed.  Consequently, it looks likely that at least a component of the red strip (beyond the width of the garden bed) has been traversed on an ongoing basis by the parties holding private access and egress rights up and down the Corridor to their homes.

18. Furthermore, Mr Laurance and the Burches wish to say that the existing carriageway arrangements show Mrs Ellison holds no access or egress rights over the red strip as currently seen - other than a traversal right across it at the top end of the Corridor proximate to her driveway at 41A Saunders Street - in an area said to be coloured purple.  Consequently, they say that to seek now to create, in effect, a new traversal scenario across a different portion of the red strip of the carriageway Corridor at the river end bears upon, in a negative way, their existing neighbourhood rights - albeit they accept that they do not enjoy exclusive rights.  Nonetheless, they contend they should have a right to be independently heard as defendants in order to oppose Mrs Ellison's current easement modification plans which would undoubtedly seem to carry with them a loss of the existing garden bed and would impact upon the future utilisation of the red strip of the Corridor seen in Schedule C.

Disposition

1. In my view, it is appropriate that Mr Laurance and Mr and Mrs Burch be joined as extra defendants to the litigation, as they seek.  I accept, in effect, their submissions that they hold existing rights of carriageway, in particular, over a red strip area, part of which is occupied by an existing garden bed, but part of which also extends wider, as part of an existing and traversable access and egress corridor to and from Saunders Street and properties at the river end of the Corridor.

2. RSC O 18 r 6(2) provides relevantly:

   (2)At any stage of the proceedings in any cause or matter the court may on such terms as it thinks just and either of its own motion or on application -

   …

   (b)order that any person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon, be added as a party …

3. As regards the application of O 18 r 6(2) of the RSC, the Court of Appeal in Elovalis v Elovalis [2008] WASCA 141 (S) has observed at [6] and [7] that:

   The phrase 'necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined' should be given a beneficial interpretation; affording to it the widest interpretation its language will permit (Woodlings v Stevenson [2001] WASC 174; (2001) 24 WAR 221 [25]; also see APT Finance Pty Ltd v Bajada [2008] WASCA 74 [34]. In general, O 18 r 6(2) is designed to avoid unnecessary technicality so as to enable parties to litigate the real issues between them in an expeditious, effective and cost effective way (APT Finance Pty Ltd [34]; see also McInnes v Wincarribee Shire Council (1987) 10 NSWLR 660, 668 and Bridge Shipping Pty Ltd v Grond Shipping SA (1991) 173 CLR 231, 260 - 261.

   Further, the expression 'all matters in dispute' has been held to have an elastic application.  In Qantas Airways Pty Ltd v AF Little Pty Ltd [1981] 2 NSWLR 34, 38 it was held that the phrase 'all matters in dispute in the proceedings' in a similar provision in the Rules of the Supreme Court 1970 (NSW), should not be construed as limited to matters arising on the existing pleadings.  It may also properly include those disputed issues of fact which are subjacent to the proceedings.

4. In reaching a decision that it is appropriate for Mr Laurance and the Burches to be made defendants to the litigation I am, of course, not expressing final views about the merits or demerits of Mrs Ellison's application, seeking a modification of her current existing easement carriageway rights as owner of 41A Saunders Street.  In fact, the terms of the precise easement modifications sought by her to the existing easement transfer document have not yet been formally crafted to reflect the changes she seeks to implement and then have the court approve.  That is a reason, I think, for proceeding cautiously at this point - to allow persons who plainly are members of the proximate Mosman Park 'neighbourhood' and who hold access and egress rights over this private carriageway Corridor (from Saunders Street to their properties) to be heard as defendants, as is their wish.  I do that noting the Marshalls do not actively oppose the application for joinder as additional defendants by Mr Laurance and the Burches. 

5. Accordingly, the application for joinder pursuant to RSC O 18 r 6(2) will be allowed and Mr Laurance and the Burches will be added as additional (second and third) defendants (respectively) to this litigation.

6. Pursuant to RSC O 21 r 5, the plaintiff will also have leave to amend her originating summons as filed on 18 December 2015, to add Mr Laurance as second defendant and Mr and Mrs Burch as third defendants. The Marshalls will be renamed as first defendants.

7. Whilst this was an opposed application and has now been determined in favour of Mr Laurance and Mr and Mrs Burch, on my assessment, their application for leave needed to be made, explained and determined.  In that context, the time occupied in obtaining insights into the somewhat unique underlying respective land‑owning positions of the parties in the 'neighbourhood' has been usefully expended.  This time was always a component of Mr Laurance and the Burches obtaining their leave to participate as additional defendants.  In the circumstances, there should be no order as to the costs of this application.  All parties, as they now are, ought respectively to bear their own costs of the joinder application.

   SCHEDULE A

   SCHEDULE B

   
   

SCHEDULE C