Giacomelli v Simpson & Ors

[2007] VSC 44

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

No. 7880 of 2006

ROBERT GIACOMELLI	Plaintiff
v
DARREL JOHN SIMPSON AND OTHERS	Defendants

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MASTER:	Evans
WHERE HELD:	Melbourne
DATE OF HEARING:	26 February 2007
DATE OF JUDGMENT:	28 February 2007
CASE MAY BE CITED AS:	Giacomelli v Simpson
MEDIUM NEUTRAL CITATION:	[2007] VSC 44

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PLEADING – Particulars – Easements – Lost modern grant – Requirement to plead continuous use of easement and particularise frequency of use – Particularisation of mode of use unnecessary.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr C.R. Northrop
For the Defendants	Mr M. Moshinsky

MASTER EVANS:

The Application

1. In this application, the defendants seek further and better particulars and an order striking out a paragraph of the plaintiff’s Statement of Claim on the writ.

The Statement of Claim

1. The plaintiff alleges the existence of an easement of way (“the carriageway”) over the defendants’ land (land registered under the Transfer of Land Act 1958) which enables access to the plaintiff’s land.  He relies on the presumption that a grant of such an easement must have been made, but is now lost, because he and his predecessors in title have enjoyed access to and from his property over the carriageway for a period in excess of 20 years commencing in 1899 or at “some later date” without force secrecy or permission.  The doctrine of lost modern grant applies to land registered under the Transfer of Land Act1958 (Nelson v. Hughes (1947) VLR 227).

The Particulars Sought

1. Although the defendants have sought particulars on three occasions, it is clear that the application is confined to the subject matter of the third request made by letter dated 29 January 2007.

1. The first request in that letter seeks “full” particulars of the allegation that the plaintiff and his predecessors in title enjoyed access to and from the plaintiff’s land over the carriageway  including “each mode (type) of access . . . . . by whom it was enjoyed and when”.

1. The formulation of the plaintiff’s claim is plainly embarrassing.  The earliest date chosen for the presumed grant is 1899.  Continuous enjoyment of the easement for 20 years thereafter would found the presumption that an easement existed. 

1. As no alternative date is chosen for the presumed grant, the defendants do not know whose continuous use of the carriageway after 1899 founds the plaintiff’s claim.  As the pleading stands, the use of the carriageway by the plaintiff himself is one of the premises upon which the existence of the grant may be founded (paragraphs 7 and 8).  As a result, the defendants must, to avoid surprise at trial, investigate the use of the carriageway for all of the period from 1899 until the issue of the writ.  Even if they do so they will not know whose use of the carriageway is relevant, save for the initial period of twenty years commencing in 1899.

1. A party who relies on the presumption of a lost modern grant is not obliged to provide particulars of the date it was made and by whom the grant was made as one cannot particularise a fiction (Palmer v. Guadagni (1906) 2 Ch. 494 at 497; Wade & English Ltd. v. Dixon & Cardus Ltd. (1937) 3 Ch. D 900 at 901; Tremayne v. English Clays Lovering Pochin & Co. Ltd. [1972] 2 All ER Ch. D. 234 at 236).  It is open to the plaintiff, it seems, to plead that by reason of one period of continuous use of a carriageways for twenty years, the existence of a grant is to be presumed but if, as the plaintiff has done in this case, more than one period of use is pleaded in the alternative it should be done with sufficient particularity at least as to the approximate time of commencement of the use so as to identify the person or persons who have enjoyed the use of the easement by reference to the title to the servient tenement (cf: Palmer v. Guadagni, supra at 497;  Tremayne & English Clays Lovering Pochin & Co. Ltd. supra at 237).

1. The defendants must have fair and proper notice of the issues to be raised (ibid).  It may be that the plaintiff will select one period rather than run the risk of paying the costs of putting the defendants to the expense of meeting each of the many possible alternatives raised by the pleading, however imperfectly, at present.

1. Another defect in the pleading is the reliance by the plaintiff on use of the carriageway in excess of twenty years.  Any use in excess of twenty years is irrelevant unless the defendants plead an abandonment of the easement presumed to have been granted.

1. Two elements necessary to the presumption of a lost modern grant have not been expressly pleaded by the plaintiff.  The first is that the enjoyment of the carriageway was continuous or uninterrupted Hollins v. Vernoy(1884) 13 QBD 304 at 315; Nelson v. Hughes supra at 228) during the relevant period of twenty years.  It should be pleaded. The second element is that the use of the carriageway has been “as of right” (Sunshine Retail Investments Pty. Ltd. v. Rodney Wulff[1999] VSC 415 at [75]). This has been pleaded negatively by alleging that the use of the carriageway has been “otherwise that by force by stealth or by permission” (paragraph 7). This is adequate to convey the allegation that the use was as of right (ibid).

1. Of the court’s own motion, the Statement of Claim will be struck out and I will grant the plaintiff leave to replead it.  In doing so, the plaintiff ought to provide, at least, particulars of the frequency of use by him and/or his predecessors in title in respect of each alternative pleaded.

1. I am not convinced that the mode of use of the carriageway requires particularisation.  It is the purpose of use as a means of access to and from the plaintiff’s property which is the relevant consideration.

1. The repleading I have authorised should satisfactorily resolve the issue raised by the defendants’ second request for particulars.

1. The third request for “full particulars” was addressed to the allegation in paragraph 7 that the defendants and their predecessors in title well knew the facts alleged in that paragraph.  In the particulars to that paragraph, it is alleged that that knowledge “is to be inferred from the facts that the carriageway appears to be a laneway and that they would have been able to see the entrances (located on the north-eastern wall of the plaintiff’s building) and the use of the carriageway to gain access to the entrances.  However slender a basis for the inference this might be, I consider that that particularisation is adequate to meet the requirements of R13.02.

1. For the foregoing reasons, I will order that the Statement of Claim be struck out, the plaintiff have leave to file and serve an amended Statement of Claim within 21 days after this day.

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