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

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).
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.
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

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.
The strips of land forming the corridor are owned by different persons. I shall refer to those aggregated strips of land as the Corridor.
The Corridor forms the 'handle' of what is, overall, an existing carriageway in the form of a battleaxe.
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.
The image seen in Schedule A (which is attachment 'TRL-8' (page 12) to the affidavit of Ms Tanya Lavan,…

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 Ellison v Marshall

Details

AGLC: Ellison v Marshall [2016] WASC 122
Case: [2016] WASC 122
Decision Date: 22 APRIL 2016

CaseChat Overview and Summary

In the case of Ellison v Marshall, the parties involved were the plaintiff, Ellison, and the defendants, Marshall. The dispute centred on the modification of a private carriageway right, which Ellison claimed had been unlawfully altered by Marshall. The case was heard in the Supreme Court of South Australia. Ellison sought to amend the statement of claim to include a proposal for modifying the easement as a defendant, arguing that this modification was necessary to address the alleged infringement of the right of way. The defendants contested this application, asserting that the proposed modification was an attempt to circumvent the requirements for joinder of defendants.

The legal issues before the court were whether the modification of the private carriageway right constituted a new cause of action that required the joinder of additional defendants, and if so, whether such a modification was permissible at the interlocutory stage. The court had to determine whether the plaintiff's interest in the proposed modification was sufficient to warrant its inclusion in the action and whether the proposed modification could be considered at the interlocutory stage.

The court found that the modification of the private carriageway right did indeed constitute a new cause of action that necessitated the joinder of additional defendants. However, the court also concluded that the plaintiff's interest in the proposed modification was sufficient to justify its inclusion in the action. The court held that while the modification could not be formally considered at the interlocutory stage, the plaintiff's interest in the proposed modification was strong enough to warrant its consideration in the context of the overall action. The court allowed the application for the modification to be included in the action.

The final orders of the court allowed the plaintiff to amend the statement of claim to include the proposed modification of the private carriageway right, with the condition that any substantive decision on the modification would be made at a later stage in the proceedings. This decision allowed the plaintiff to proceed with the action while ensuring that the interests of all parties involved were adequately protected.

Orders