Gillingarra Sport and Recreation Club INC. v Kelly - [2022] WASC 152

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   GILLINGARRA SPORT AND RECREATION CLUB INC. -v- KELLY [2022] WASC 152
CORAM:   SMITH J
HEARD:   29 APRIL 2022
DELIVERED          :   29 APRIL 2022
PUBLISHED           :   4 MAY 2022
FILE NO/S:   CIV 2270 of 2021
BETWEEN:   GILLINGARRA SPORT AND RECREATION CLUB INC.
Plaintiff
AND
PETER MICHAEL KELLY
Defendant

Catchwords:

Injunctions - Interlocutory - Whether serious question to be tried - Balance of convenience

Easements - Easements by prescription - Doctrine of lost modern grant - Equitable easements by proprietary estoppel

Legislation:

Nil

Result:

Interlocutory orders made

Category: B

Representation:

Counsel:

Plaintiff	:	B Dalitz
Defendant	:	CS Williams

Solicitors:

Plaintiff	:	Bailiwick Legal
Defendant	:	Solomon Brothers

Cases referred to in decision:

Auckran v Pakuranga Hunt Club (1904) 24 NZLR 235
Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57
Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618
Dillwyn v Llewellyn (1862) 4 De GF & J 517; 45 ER 1285
Gangemi v Watson (1994) 11 WAR 505
Gangemi v Watson (Unreported, WASC, Library No 930473, 1 September 1993)
Giumelli v Giumelli [1999] HCA 10; (1999) 196 CLR 101
Maio v City of Stirling [No 2] [2016] WASCA 45
Mineralogy Pty Ltd v Sino Iron Pty Ltd [2016] WASCA 105
National Bank Australia Ltd v Joyce [2012] WASC 224
Pekel v Humich [1999] WASC 65
Priestley v Priestley [2017] NSWCA 155
R (Barkas) v North Yorkshire County Council [2015] AC 195
Ramsden v Dyson (1866) LR 1 HL 129
Rowe v The Roman Catholic Archbishop of Perth [No 2] [2022] WASCA 28
Sidhu v Van Dyke [2014] HCA 19; (2014) 251 CLR 505
Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2017] WASCA 76
Sunshine Retail Investments Pty Ltd v Wulff [1999] VSC 415
Twinside Pty Ltd v Venetian Nominees Pty Ltd [2008] WASC 110
Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7; (1988) 164 CLR 387
Wellard Land Holdings (WA) Pty Ltd v Barker Mortgages Pty Ltd [2018] WASC 27

Table of Contents

1.0 The Application

2.0 A preliminary issue - waiver of the requirement for conferral pursuant to O 59 r 9(1)

3.0 The parties, relevant agreements and the defendant's agreement with the Crown to grant an easement

4.0 The plaintiff's action, and its application to amend its writ and join the owners of Lot 20 and Lot 11

5.0 Background facts relevant to the supply of water from the bore to the Gillingarra School Grounds, and the recent disruption to the supply of water

6.0 Relevant principles

6.1 The grant of an interlocutory injunction

6.2 Legal principles - Doctrine of lost modern grant and the Prescription Act 1832 (UK)

6.3 Legal principles - Equitable easements

7.0 Have the plaintiff's made out a prima facie case?

7.1 Easement by prescription or by lost modern grant

7.2 Easement by proprietary estoppel

8.0 Balance of convenience

SMITH J:

Without intending any disrespect, after they have been introduced, the members of the plaintiff, and the non‑parties who the plaintiff intends to join as defendants to these proceedings, will be referred to by their first names.

1.0 The Application

On 25 November 2021, the plaintiff commenced proceedings against the defendant by filing a writ indorsed with a claim that the plaintiff has an easement over a bore site and infrastructure on the defendant's land, and claiming the defendant had obstructed access by the plaintiff to the part of the land subject of its claimed easement.
The plaintiff filed an application on 29 March 2022 for urgent interlocutory injunction orders.
By an amended chamber summons dated 29 April 2022, the plaintiff sought the following orders:
(1)Until after judgment in this action, or further order, the defendant be compelled and an injunction is granted compelling him to remove before Saturday 30 April 2022 all chains, locks and any other permanent structures on Lot 21 on Deposited Plan 40761, being the whole of the land comprised on Certificate of Title Volume 2569 Folio 900 (Lot 21) obstructing or interfering with the plaintiff's enjoyment, as registered proprietor of Lot 4079 on Deposited Plan 27553 comprised in Certificate of Title Volume 2631 Folio 843 (Gillingarra School Grounds), of an easement (Easement) that confers the rights to:
1.1enter, by its employees, officers, agents and contractors, the area marked 'pipeline' running between the areas marked 'Old School Block' and 'Bore Site' (comprised of parts of Lot 11, Lot 20 and Lot 21) on the attached map (Easement Area) for ingress to and egress from the area marked 'Bore Site' on the map (Bore Site) and to maintain, alter or improve:
1.1.1.the pipelines that lay on or under the Easement Area; or
1.1.2.any apparatus connected with and requisite to secure the safe and proper working of the pipelines; and
1.2.use the pipelines which lay on or under the Easement Area for the passage or conveyance of water.
2Until after judgment in this action, or further order, the defendant, whether by himself or his employees, agents or otherwise, be restrained and an injunction is granted restraining him from obstructing or interfering with the plaintiff's enjoyment, as registered proprietor of the Gillingarra School Grounds, of the Easement.
After hearing from counsel for the parties, the following interlocutory injunctive orders were made:[1]
[1] Personal contact information of the parties omitted.
1.Until after judgment in this action, or further order, the defendant, whether by himself or his employees, agents or otherwise, be restrained and an injunction is granted restraining him from:
(a)interfering with the supply of electricity to the pump ('the Pump') for the bore ('the Bore') which is situated in the area that is delineated and coloured green in the plan marked 'A' in the First Schedule to the Indenture dated 6 March 1986 a copy of which is attachment 'JJK‑8' to the affidavit sworn by James Joseph Kelly on 29 March 2022 and forming part of the land known as 5590 Bindoon-Moora Road, Gillingarra, more particularly described as Lot 21 on Deposited Plan 40762 and being the whole of the land the subject of Certificate of Title Volume 2569 Folio 900 ('Lot 21'); or
(b)interfering with the operation of the Pump at any time at which either of the two tanks located on the property known as 127 Gillingarra-Glentromie Road, Gillingarra, being more properly described as Lot 11 on Deposited Plan 25763 and being the whole of the land the subject of Certificate of Title Volume 2505 Folio 81 ('Lot 11') from which water from the Bore is pumped is not full,
during such times as the Pump is functioning properly and operating within normal parameters.
2.The defendant is to take reasonable steps to ensure the Pump is functioning properly and within normal parameters.
3.If the Pump is not functioning properly and operating within normal parameters, the defendant:
(a)is to, as soon as possible after becoming aware of that fact, give notice to the plaintiff (by email … or by text message to Jennifer Kelly …, and be accompanied by letter from the defendant's solicitors to the plaintiff's solicitors) of that fact and the reasons why and thereafter confer on what is to be done to repair or rectify the Pump or any parts of the infrastructure that are situated on Lot 21; and
(b)if, after conferral between the plaintiff and defendant, it is necessary for the pump contractor, Webb & Co, to inspect the Pump and infrastructure before carrying out repairs and rectification work, on the plaintiff giving reasonable notice to the defendant …, the defendant is to permit an inspection by Neil Botha, who can only carry out the inspection in the company of an authorised representative of Webb & Co during working hours; and
(c)must allow Webb & Co to carry out any necessary repairs and rectification work.
4.Order 3 has effect only if the plaintiff provides free access to Webb & Co to the plaintiff's land and to the pipelines and water tanks on Lot 11 on reasonable notice and during working hours.
The reasons why these orders were made are as follows.

2.0 A preliminary issue - waiver of the requirement for conferral pursuant to O 59 r 9(1)

The plaintiff's application for an interlocutory injunction was not preceded by any oral conferral. The defendant contended that in the absence of oral conferral, the plaintiff's application should be dismissed.
After hearing the parties, I made an order waiving the requirement for oral conferral.
Although it is clear that oral conferral did not occur prior to the filing of the application, there was conferral after the application was first listed for hearing on 6 April 2022, and after the parties had participated in a mediation on 22 April 2022.
The lack of oral conferral is unsatisfactory, and appears to have been brought about by the combative attitudes that the plaintiff and the defendant have had towards each other since the dispute between them arose at least by sometime in early 2021. However, in the face of what appeared to be a deadlock from both sides in sensibly approaching what needs to be immediately done to ensure the ongoing adequate supply of water to the plaintiff's land, I waived the requirement for conferral.

3.0 The parties, relevant agreements and the defendant's agreement with the Crown to grant an easement

The plaintiff is a volunteer community organisation that owns and manages the Gillingarra School Grounds, which comprises two lots, one of which is known as the old school grounds which the plaintiff says is used for the conservation, accommodation and committee purposes. The other is the old schoolmaster's house. The schoolmaster's residence is leased by the plaintiff as short‑term and long‑term accommodation for visitors and travellers. The plaintiff also undertakes other activities, including the management of the community hall and a community emergency water supply and standpipe, which water is supplied from a bore on the defendant's land.
The defendant is the registered proprietor of Lot 21, which was created by subdivision from a larger lot, Lot 6 on diagram 61423, certificate of title, volume 1610, folio 798 (Lot 6).
In 1984, the Crown in right of the State owned the Gillingarra School Grounds.
On 6 March 1986, the defendant entered into an agreement with the Crown to enable the supply of water to the Gillingarra School Grounds. On 6 March 1986, the defendant agreed to sell the Crown a portion of his land that hosts a bore on Lot 6 and granted the Crown and its successors in title of the bore site the right to enter an area of Lot 6 to maintain and use the water pipes on Lot 6 running from the bore site to the Gillingarra School Grounds.
Part of the 1986 agreement between the defendant and the Crown was the grant of an easement by the defendant as grantor to the Crown as grantee, which easement was the subject of a caveat lodged on 29 May 1986. The defendant granted the easement to the Crown for consideration of a payment of $100 for the easement, and payment of a separate amount of $100 for the sale of the part of the defendant's land comprising an area of 25m² on which the bore is located.[2]
[2] Affidavit of James Joseph Kelly sworn 29 March 2022, Attachment JJK-8, 18 - 20.
The second schedule to the 1986 agreement contains the deed of grant of easement, which records that the defendant, pursuant to the terms of the agreement, would transfer to the Crown that portion of his land (described as the dominant tenement and shown coloured green on the plan marked 'A') and would grant to the Crown an easement over that portion of the servient tenement as is coloured blue on the plan marked 'B' being that part of the defendant's land on which a pipeline extends from the bore site to the Gillingarra School Grounds.[3]
[3] See affidavit of James Joseph Kelly sworn 29 March 2022, Attachment JJK-8, 19, 23 - 24 and 26 and affidavit of Matilde Jessica Lloyd sworn 22 February 2022, Attachment MUL-3, 6.
The material terms of the easement were that the defendant and his successors in title of the servient tenement transferred and granted to the Crown and its successors in title, the registered proprietor or proprietors for the time being of the dominant tenement full and free right and liberty to and for the Crown:[4]
[4] Affidavit of James Joseph Kelly sworn 29 March 2022, Attachment JJK-8, 26 - 27.
(1)by its workmen officers servants agents contractors and others acting under the authority of the Grantee with or without carriages or vehicles or motor or other mechanised vehicles laded or unladen from time to time at all times hereafter to enter upon the affected land for the purpose of ingress to and egress from the dominant tenement and for all or any of the purposes of constructing laying extending maintaining altering or improving -
(a)the existing pipeline or any other pipelines for the carriage of water through under or upon the affected land, and
(b)any apparatus connected with and requisite to secure the safe and proper working of any of the aforesaid pipelines (which apparatus is hereinafter referred to as 'the fittings') and for all or any of such purposes:
(i)to make surveys and take levels of the affected land and set out such parts thereof as it may think fit and to use any earth stones and other things taken therefrom;
(ii)to construct extend maintain alter and improve any of the aforesaid pipelines and fittings or any one or more of them through under or upon the affected land;
(iii)to open and break up the soil of the affected land and excavate and sink trenches for the purpose of constructing extending maintaining altering or improving any of the aforesaid pipelines and fittings or any one or more of them;
(iv)to open cleanse and repair any of the aforesaid pipelines and fittings or any one or more of them to alter the position or construction thereof.
The 25m² of land (which is described in the second schedule attached to the 1986 agreement as the dominant tenement) upon which the bore is located and from which a pipeline runs to the Gillingarra School Grounds, has never been transferred by the defendant to the Crown. It is common ground, however, that the Crown retains an equitable interest in that land as it has a right to insist upon the transfer pursuant to the terms of the 1986 Agreement.
On 1 July 2004, a deed of covenant (the 2004 Deed) was entered into between the State of Western Australia acting through the Minister for Lands and Shane and Emma.
The 2004 Deed:[5]
(a)recited that Peter wished to transfer Lot 20 to Shane and Emma (Recital C); and
(b)provided that Shane and Emma agreed that the obligations of Peter contained in the 1986 Deed in relation to the granting of an easement over 'the affected land' (as that term was defined in the 1986 Deed, being the land coloured blue and the location of the pipeline), to the extent that 'the affected land' was within Lot 20 (being the land upon which the pipeline ran from the bore on Lot 21) would bind Shane and Emma, and Shane and Emma would carry out and comply with their obligations as though they were party to and had executed the 1986 Deed.
[5] A copy of the 2004 Deed is annexure SBK-1 to the affidavit sworn by Shane Brian Kelly on 11 April 2022, 8 - 10.
Following the transfer of part of Lot 6 in 2004 to Shane and Emma, the bore remained located on land owned by the defendant, namely Lot 21.
The pipeline which connects the bore to the Gillingarra School Grounds:[6]
(a)travels from the bore site across part of Lot 21;
(b)then travels across the boundary fence line between Lot 21 and Lot 20 and down into Lot 20;
(c)continues to travel south following the fence lines of Lot 20 and crosses the fence line of Lot 11; and
(d)then goes across Lot 11, for about 20m, into the Gillingarra School Grounds.
[6] A map of the pipeline, bore site and lots is attached as 'Annexure A'.
Connected to the pipeline is another pipeline that runs east from the Gillingarra School Grounds into Lot 11, which is connected to two water tanks which were installed in 2008 or 2009.
The two tanks were constructed on Lot 11 in or about 2008 or 2009, together with the second pipeline connecting those two tanks to the original pipeline that runs from the bore site to the Gillingarra School Grounds. The plaintiff claims that it owns this infrastructure, having secured a government grant for the installation of the tanks and the infrastructure. Pamela disputes that the tanks and the infrastructure are owned by the plaintiff, and claims that these are fixtures on her land.
The construction of the tanks on Lot 11 were the subject of a deed entered into between Brian Bernard Kelly (Pamela's late husband) and the plaintiff dated 19 February 2009 (the 2009 Deed).
The term of the 2009 Deed is for a period of 20 years expiring on 31 December 2028. The express terms of the deed are that:[7]
(a)throughout the term the plaintiff maintain the water tanks and pipes in good order and condition, construct a 6 foot high mesh fence around the water tanks and maintain the fence in good order and repair;
(b)Brian is to allow access to the plaintiff for the purpose of inspecting and carrying out repairs and maintenance to the tanks and pipes;
(c)the plaintiff is to allow Brian to draw water from the water tanks for general farming purposes;
(d)the plaintiff is to reimburse Brian the cost of any increase insurance premiums payable by Brian as a result of the construction of the water tanks; and
(e)at the expiration of the term the plaintiff is required to remove the water tanks and piping if requested by Brian (now Pamela), but if Pamela directs that the water tanks and/or piping shall remain then the water tanks and/or piping shall be the property of the plaintiff.

4.0 The plaintiff's action, and its application to amend its writ and join the owners of Lot 20 and Lot 11

[7] Affidavit of Jennifer Kelly sworn 29 March 2022, Attachment JK-2, 10 - 11.

The plaintiff claims that from 1984, the Crown, and then the plaintiff (from 2001 when it leased the Gillingarra School Grounds and purchased the Gillingarra School Grounds in 2006) have continually used the pipeline to supply water from the bore site to the Gillingarra School Grounds.
As the defendant points out, the terms of the relief that the plaintiff seeks, and the bases for the plaintiff's claim, have been in a state of flux.
The plaintiff claimed in its Statement of Claim filed 23 December 2021 that it is a successor in title to an express easement (being in effect pursuant to the 1986 agreement).
In the alternative, the plaintiff claims an easement exists in their favour by reason of prescription or under the doctrine of lost modern grant. The plaintiff also pleads in the alternative that the defendant is estopped from denying that the Crown is the legal and beneficial owner of the bore site, the existence and legal effect of the easement, and that the plaintiff, as successor in title to the Gillingarra School Grounds, enjoys all of the rights of the grantee under the easement agreement.
The plaintiff now does not press the express easement claim, and has applied for leave to amend its writ, and to join Shane, Emma and Pamela as additional defendants.
In a minute of substituted indorsement of claim dated 7 February 2022, the plaintiff proposed to contend that an easement exists in favour of the plaintiff by reason of implication, to give effect to a common intention that existed to create an easement, the dominant tenement of which was the Gillingarra School Grounds. However, at the hearing of the application for the interlocutory injunction, Counsel for the plaintiff informed the court that it does not intend to press the amendment to the writ to plead an easement by implication.

On 29 April 2022, the plaintiff filed a minute of further further amended orders in support of the chamber summons to amend the writ, which makes it clear that it now does not seek to amend the writ to plead an easement by implication.
The application to amend the writ to add the registered proprietors of Lot 11 and Lot 20 has been made by the plaintiff because its claimed easement runs from the defendant's land across Lot 11 and across Lot 20.[8]
[8] Affidavit of Matilde Jessica Lloyd sworn 22 February 2022, pars 5 - 8.
The application to amend the writ and join the defendants has been listed for hearing by the Master for a special appointment on 18 May 2022. The defendant and the proposed defendants, Shane, Emma and Pamela have filed affidavit material and written submissions opposing the applications. Those applications have yet to be dealt with by the court and for this reason will not be considered in the determination of the application for interlocutory injunctive orders.
In considering the balance of convenience I have had regard to the fact that in the absence of any orders joining Shane, Emma and Pamela as defendants to the action, that the court should not make any interlocutory order that binds each or any of them.
If it is successful in its application to join Shane and Emma and Pamela, in a plaintiff's minute of substituted indorsement of claim dated 29 April 2022 (the April Minute), the plaintiff proposes to claim in par 5 that it has an easement that confers the right to:
(a)enter, by its employees, officers, agents and contractors, the area marked 'pipeline' running between the areas marked 'Old School Block' and 'Bore Site' (comprised of parts of Lots 11, 20 and 21) on the attached map (Easement Area) for ingress to and egress from the area marked 'Bore Site' on the map (Bore Site) and to maintain, alter or improve: the pipelines that lay on or under the Easement Area; or any apparatus connected with and requisite to secure the safe and proper working of the pipelines; and
(b)use the pipelines which lay on or under the Easement Area for the passage or conveyance of water.
In par 6 of the April Minute, the plaintiff proposes to claim in the indorsement on the writ that the easement is created:
(a)under the doctrine of lost modern grant because the plaintiff and its predecessors in title of the Gillingarra School Grounds enjoyed as of right the easement for an uninterrupted period starting in or before 1986 and ending in February 2021, alternatively, under the Prescription Act 1832 (Imp) s 2 because the plaintiff and its predecessors in title of the Gillingarra School Grounds enjoyed as of right the easement for an uninterrupted period of 20 years immediately preceding the commencement of this action; or
(b)alternatively, in equity because the defendants are estopped from denying that the plaintiff enjoys the easement because the plaintiff detrimentally relied on the defendant's acquiescence over some or all of the periods referred to above.

5.0 Background facts relevant to the supply of water from the bore to the Gillingarra School Grounds, and the recent disruption to the supply of water

James has been a member of the plaintiff for 58 years.[9] His daughters, Jennifer and Rebecca, have been members of the plaintiff for 16 years, and for the past 6 years they have been committee members of the plaintiff.
[9] Affidavit of James Joseph Kelly sworn 29 March 2022, par 11.
James is the defendant's cousin. In his first affidavit, James deposes:
(1)Before 1986, water was supplied to the Gillingarra School Grounds from a windmill which distributed the water across the town. From 1984, until the present, the Gillingarra School Grounds have continually used and relied upon the water supply from the bore on Lot 21 through the pipeline that runs through Lot 21, and crosses over Lot 20 and Lot 11.[10]
[10] Affidavit of James Joseph Kelly sworn 29 March 2022, par 55.
(2)The water from the bore supplies all of the buildings and water facilities on the Gillingarra School Grounds.[11]
[11] Affidavit of James Joseph Kelly sworn 29 March 2022, par 28.
(3)Following the closure of the school in 1998, when issues arose with the water supply, the plaintiff and the Shire of Victoria Plains have shared the costs of maintenance and repair.[12]
[12] Affidavit of James Joseph Kelly sworn 29 March 2022, par 29.
(4)In or around 2008, using community funds and Government Drought Funding, to ensure the community had an emergency water supply reserve, an expansion of the water supply was upgraded which involved the construction of:[13]
[13] Affidavit of James Joseph Kelly sworn 29 March 2022, par 36.
(a)two 130,000 litre tanks on Lot 11, about 150m upslope from the Gillingarra School Grounds; and
(b)one 100mm inside diameter standpipe for emergency responses located on the Gillingarra School Grounds.
(5)A 30m long, 100mm diameter poly pipe, gravity fed pipeline system connects the tanks on Lot 2 to the standpipe at the Gillingarra School Grounds. This pipeline is also connected to the original pipeline that runs from the bore on the defendant's land.[14]
(6)The bore on the defendant's land is still the Gillingarra School Grounds' main water supply, with the water tanks acting as water reserves.[15]
(7)In or around March 2021, the Department of Land Administration agreed to lease the Gillingarra School Grounds to the plaintiff.[16]
(8)In 2008 (after the plaintiff had purchased the Gillingarra School Grounds), the plaintiff used a Drought Water supply grant (in 2009) to purchase and install at the bore site a pump, timing switch, and cover for the switchboard.[17] At about the same time, the defendant installed his own pump on the bore as well as a separate electricity meter.[18]
(9)In December 2019, the plaintiff paid for maintenance work on the bore and switchboard and Webb & Co invoiced the plaintiff for this work.[19]
(10)Since 1984, to ensure the water supply is in order and operating correctly, he and other members of the plaintiff have conducted weekly checks on the water bore infrastructure and since 2008 on the water supply tanks. To check the bore, they normally exit the Gillingarra School Grounds through a boundary fence on the fence line with Lot 11, drive over Lot 11 and a longer track on Lot 20 and then through another gate on the boundary of Lot 20 and Lot 21, and then over to Lot 21 to the bore site.[20]
(11)Sometime in or about February 2021, he observed that the boundary gate on the fence line of the Gillingarra School Grounds with Lot 11 was chained and padlocked.[21]
[14] Affidavit of James Joseph Kelly sworn 29 March 2022, par 38.
[15] Affidavit of James Joseph Kelly sworn 29 March 2022, par 39.
[16] Affidavit of James Joseph Kelly sworn 29 March 2022, par 49 and Attachment JJK-15, 47.
[17] Affidavit of James Joseph Kelly sworn 29 March 2022, par 56 and Attachment JJK-16, 48.
[18] Affidavit of James Joseph Kelly sworn 29 March 2022, par 57 and Attachment JJK-17, 49 - 51.
[19] Affidavit of James Joseph Kelly sworn 29 March 2022, par 59 and Attachment JJK-19, 54.
[20] Affidavit of James Joseph Kelly sworn 29 March 2022, pars 60 and 62.
[21] Affidavit of James Joseph Kelly sworn 29 March 2022, par 64.
The plaintiff claims that the defendant has obstructed the plaintiff's access to Lot 21 and the supply of water from the bore site through the pipelines to the Gillingarra School Grounds since in or around February 2021 by:
(a)chaining and padlocking gates in or around February 2021. In oral submissions, counsel for the plaintiff referred to locks on the border of Lot 20 and Lot 21. However, the lock complained of in the affidavit material appears to be a lock on the boundary gate on the fence line of the Gillingarra School Grounds and Lot 11. In his affidavit, Shane states that he locked this gate after being told about an altercation between the defendant and his father (Pamela's husband);[22]
[22] Affidavit of Shane Brian Kelly sworn 11 April 2022, pars 19 - 20.
(b)repeatedly asserting since April 2021, in effect, that the plaintiff had no right to enter Lot 21 as follows:
(i)on 26 April 2021, the plaintiff received a letter from the defendant informing the committee members that the plaintiff's members were strictly prohibited from accessing the bore site and related infrastructure.[23] The letter stated that access through Lot 21 by any committee members and specifically James, regardless of his capacity, is strictly prohibited effective immediately, and access by any member of the plaintiff for the purposes of visiting the Government bore or related infrastructure is also prohibited, effective immediately. The letter also stated that unauthorised entry would be considered trespassing and would be reported to appropriate authorities;
[23] Affidavit of Rebecca Jennifer Kelly sworn 29 March 2022, par 10 and Attachment RK-2, 9.
(ii)On 11 October 2021, the plaintiff received a letter from solicitors acting for the defendant, Shane, Emma and Pamela in which it was stated that the defendant, Shane, Emma and Pamela prohibited the plaintiff from entering their land;[24]
[24] Affidavit of Rebecca Jennifer Kelly sworn 29 March 2022, par 11 and Attachment RK-3, 10.
(iii)on 7 November 2021, a member of the plaintiff observed that there was no water being pumped into the 2 tanks located on Lot 11. On 8 November 2021, Rebecca and her partner Neil Botha checked the tanks and then drove on to the defendant's land to the bore site with other members of the plaintiff and saw the defendant. The defendant told Rebecca and the others that the plaintiff and its members are not allowed to go to the bore site and the water pump, and have no right to access the bore site. Rebecca also stated in her affidavit that the defendant said that he would not unlock the gate to the easement and that he had switched off the power to the pump on the bore site;[25]
[25] Affidavit of Rebecca Jennifer Kelly sworn 29 March 2022, pars 12 - 16.
(c)on 10 November 2021, the defendant's solicitors sent an email to the plaintiff's solicitors confirming that the defendant had turned the pump off to the bore, and sought information about the nature of the plaintiff's claimed rights. The email also stated that if the defendant agreed to turn the pump back on it was conditional upon the plaintiff not entering the defendant's land;[26]
[26] Affidavit of Rebecca Jennifer Kelly sworn 29 March 2022, par 18 and Attachment RK-4, 14 - 15.
(d)on 31 January 2022, the defendant and Shane were at the Gillingarra School Grounds at the same time as a truck driver was accessing the standpipe for water. The defendant yelled at the truck driver and Rebecca asked him to leave. Shane said words to the effect of 'we'll just go and turn the pump off again';[27]
(e)on 2 February 2022, there was no water being pumped into the tanks on Lot 11. On 11 February 2022, Jennifer together with other members of the plaintiff went to the bore site to see why there was no water pumping into the tanks and saw that control boxes were opened, the switches seemed to indicate that the power on, the bore was overflowing but it appeared that the pump was not pumping. When Rebecca and the other members were leaving the bore site in a vehicle, they saw the defendant driving at speed towards them from a distance away;[28]
(f)on 19 February 2022, Jennifer telephoned Mr Wilson of Webb & Co who informed that he was going to the bore site that afternoon to inspect and assess the pump. On 21 February 2022, Jennifer spoke again with Mr Wilson who informed her that:
(i)the total cost of replacement of the pump would be around $3000;
(ii)the defendant had engaged them to inspect and assess the pump at the bore site; and
(iii)the defendant intended to pay for the inspection and assessment;
(g)on 22 February 2022, Jennifer spoke to an electrician employed by Webb & Co and was informed that the shaft on the pump was broken and a new pump and motor would be required;[29] and
(g)as at 11 March 2022, there was still no water being pumped into the tanks on Lot 11.[30]
[27] Affidavit of Rebecca Jennifer Kelly sworn 29 March 2022, pars 19 and 20.
[28] Affidavit of Rebecca Jennifer Kelly sworn 29 March 2022, par 23 - 24.
[29] Affidavit of Jennifer Kelly sworn 29 March 2022, pars 13 - 22.
[30] Affidavit of Rebecca Jennifer Kelly sworn 29 March 2022, par 38.
The defendant in his affidavit denies that he has ever engaged in any threatening behaviour towards any of the members of the plaintiff or to a truck driver and points out that he is approaching 80 years of age.[31]
[31] Affidavit of Peter Michael Kelly sworn 11 April 2022, par 38.
As to the circumstances of the interruption in the supply of water to the Gillingarra School Grounds, in February 2022, the defendant deposes that:[32]
(a)on or around 11 February 2022, he checked the status of the water pump and noticed that the pressure gauge was fluctuating and that on the following day he spoke to Mr Wilson and left a voicemail requesting Mr Wilson to inspect the bore to see if any of the settings had been changed but Mr Wilson did not return his call;
(b)on 17 February 2022, a friend inspected the pump and told him he could not identify any problems with the pump;
(c)on or around 18 February 2022, he checked the pump again and noticed that although the power was running to the pump it had completely stopped working, and as a result he telephoned Mr Wilson again. Mr Wilson informed him that he might be able to get there that day, or hopefully on Saturday morning (19 February 2022). On the same day his daughter, Marelda Kelly, informed him that some members of the plaintiff had entered Lot 21 and gone to the bore site; and
(d)on 19 February 2022, Mr Wilson retrieved and inspected the pump, and advised that it needed to be replaced.
[32] Affidavit of Peter Michael Kelly sworn 11 April 2022, pars 27 - 33.
In a series of letters from the defendant's solicitors to the plaintiff's solicitors dated 20 April 2022, 27 April 2022 and 28 April 2022, the plaintiff was informed:[33]
(a)the defendant ordered a new pump, and it was installed by Mr Wilson on 7 April 2022;
(b)after the installation of the new pump, the tanks on Lot 11 were filling. On 17 April 2022, the defendant observed water flowing into the tanks at fluctuating pressures and at high pressure but with a low flow rate. As the tanks had some water in them, he turned the pump off temporarily because he was concerned that the pump could burn out if there was a defect in some part of the pipeline;
(c)on 23 April 2022, the pump operated for a period without any issues of fluctuating or high-pressure which resulted in the tanks on Lot 11 being completely filled. The new pump then malfunctioned. It appeared to be operating without drawing water. As a result, the defendant turned the pump off again, and arranged for Mr Wilson to attend and inspect the pump. Mr Wilson made some adjustments to the pump, and the pump again appeared to be working normally;
(d)on 27 April 2022, Mr Wilson attended the bore site and the pump and noted that the pump was running and functioning normally; and
(e)on 27 April 2022, the defendant checked the pump at 9.00pm and observed that it appeared again a restriction was affecting the flow of water, and formed the opinion that to further investigate the cause of the issue, Mr Wilson would need to access the tanks on Lot 11 to assess the flow rate of water, check the gauge mechanism, and to do so to obtain access to the manholes of the tanks on Lot 11.
[33] Affidavit of Julie Ann Minett sworn 28 April 2022, Attachment JAM 1, JAM 2, JAM 4, and JAM 5, 3 - 4, 7 and 10.
In the last letter from the defendant's solicitors to the plaintiff's solicitors sent on 28 April 2022, the defendant's solicitors asked whether the plaintiff could advise when arrangements could be made for the manholes to be opened to allow Mr Wilson access, or alternatively to contact Mr Wilson directly to arrange for those manholes to be open.
At the hearing on 29 April 2022, counsel for the defendant informed the court that the plaintiff needed to provide access to the tanks on Lot 11 to investigate the cause of a restriction because the plaintiff had control of the tanks on Lot 11. When asked whether permission had been granted prior to the commencement of the hearing, counsel for the plaintiff informed the court that permission had not been granted at this point in time because the defendant had denied access to his land and had informed Mr Wilson not to communicate with any member of the plaintiff.

6.0 Relevant principles

6.1 The grant of an interlocutory injunction

The principles in relation to interlocutory injunctions are well known, and were summarised by Beech J in Twinside Pty Ltd v Venetian Nominees Pty Ltd.[34] Essentially, there are three questions to be asked by the court:[35]
(a)whether there is a serious question to be tried or that the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be entitled to relief;
(b)whether the plaintiff will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted; and
(c)whether the balance of convenience favours the granting of an injunction.
[34] Twinside Pty Ltd v Venetian Nominees Pty Ltd [2008] WASC 110.
[35] Twinside Pty Ltd v Venetian Nominees Pty Ltd [2008] WASC 110 [7] - [11].
The question of adequacy of damages is an aspect of the balance of convenience, not a separate requirement.[36]
[36] Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2017] WASCA 76 [131] (Buss P, Murphy JA and Beech J).
Where a party is seeking in effect what is a mandatory injunction, no more stringent or different legal test is to be applied than that which is applicable in seeking a prohibitory injunction.[37]
[37] Mineralogy Pty Ltd v Sino Iron Pty Ltd [2016] WASCA 105 [76] - [85] (Newnes JA; McLure P and Corboy J agreed); see also Ooranya Pty Ltd v ISPT Pty Ltd [2018] WASC 256 [85] (K Martin J).
In Mineralogy Pty Ltd v Sino Iron Pty Ltd, Newnes JA relevantly observed:[38]
The first inquiry as to a 'prima facie case' does not mean that the plaintiff must show that it is more probable than not that at trial the plaintiff will succeed. It is sufficient that the plaintiff show a sufficient likelihood of success to justify, in the circumstances, the preservation of the status quo pending the trial. How strong the probability needs to be depends upon the nature of the rights the plaintiff asserts and the practical consequences likely to flow from the orders the plaintiff seeks. The second inquiry is whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs, or is outweighed by, the injury which the defendant would suffer if an injunction was granted: Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; (1968) 118 CLR 618; Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57. Whether an applicant for an interlocutory injunction has made out a sufficient prima facie case and whether the balance of convenience favours the grant of such relief are related, not independent, questions: Warner-Lambert Co LCC v Apotex Pty Ltd [2014] FCAFC 59 [70].
[38] Mineralogy Pty Ltd v Sino Iron Pty Ltd [2016] WASCA 105 [87] (Newnes JA; McLure P and Corboy J agreed).
Where a plaintiff seeks to invoke equity's auxiliary jurisdiction to protect what it says of its enjoyment of its rights in equity, the following principles apply:[39]
Where equity's jurisdiction is invoked in an application for an interlocutory injunction, it is necessary to identify the legal or equitable rights which are said to be determined at trial and in respect of which final relief is sought. The power to grant an interlocutory injunction is not to be exercised by reference to unconstrained notions of what appears to be just: it must be exercised by reference to the rights claimed by the applicant in the proceedings. The final relief itself need not be injunctive in nature in this connection: Lenah. An interlocutory injunction in the auxiliary jurisdiction can only lie in order to protect an equitable or legal right which the plaintiff might enforce by final judgment: Lenah. The usual form of the interlocutory injunction in this court is 'until after judgment in this action, or further order' The usual form of the order, as well as the purpose of the order, indicates that there is no 'free-standing' right to an interlocutory injunction: Lenah. The first question to be answered by the plaintiff in seeking an interlocutory injunction is, 'what is your equity?'
The parties to this appeal did not take issue with the observations made in Mineralogy Pty Ltd v Sino Iron Pty Ltd as to the general principles to be applied in the exercise of the power to grant an interlocutory injunction. Those observations proceed, at least implicitly, on the basis that the question of adequacy of damages is an aspect of the balance of convenience, not a separate requirement. We will also proceed on that basis. Three further points should, however, be observed. First, in an interlocutory injunction application in equity's exclusive jurisdiction, the question of whether damages or other remedies at law are adequate does not arise: Heavener v Loomes. Secondly, in equity's auxiliary jurisdiction, the question of whether the plaintiff will suffer irreparable injury for which damages will not be adequate compensation involves no more than a consideration of whether the injury cannot properly be compensated in damages, or by an order for accounts or some other interim remedy. The question of whether the injury cannot properly be compensated in damages involves a consideration of whether it is just in all the circumstances that the plaintiff be confined to their remedy in damages. See R v MacFarlane; Ex parte O'Flanagan and O'Kelly; Action Cycles Pty Ltd v Ross; Meagher, Gummow & Lehane. Thirdly, as the Full Court of the Federal Court observed in Samsung Electronics Company Ltd, in assessing the balance of convenience in an interlocutory injunction application, the interests of the public and third persons are relevant and have more or less weight according to other material circumstances; whether those interests tend to favour the grant or refusal of an injunction in any given case depends upon the circumstances of the case; and hardship visited upon third persons or the public generally by the grant of an interlocutory injunction will rarely be decisive.
[39] Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2017] WASCA 76 [130] - [131] (footnotes omitted).

Where a plaintiff seeks a mandatory injunction, the court must examine the form of the mandatory injunction sought, which may seek to do more than to establish the status quo. The court in these circumstances must look at the nature of the injunction sought by the plaintiff and the practical consequences of the orders sought.[40]
[40] Twinside Pty Ltd v Venetian Nominees Pty Ltd [2008] WASC 110 [12] (Beech J); see also Wellard Land Holdings (WA) Pty Ltd v Barker Mortgages Pty Ltd [2018] WASC 27 [9] (Chaney J).
In assessing the balance of convenience, it is ultimately a question as to what is the balance of the risk of injustice. First of all, it is an established principle that a plaintiff must show sufficient likelihood of success to justify the status quo being preserved until trial. How strong the probability of success that a plaintiff must show depends upon the rights asserted by the plaintiff and the practical consequences that might flow from the orders the plaintiff seeks.[41]
[41] Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57, 82 (Gummow & Hayne JJ); see also Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618, 622 (Kitto, Taylor, Menzies & Owen JJ).
Justice Edelman pointed out in National Bank Australia Ltd v Joyce:[42]
Although the purpose of interlocutory injunction is often said to be to preserve the status quo until the hearing of the main action and although the status quo is the situation immediately before the issue of the writ seeking the permanent injunction, it has also been emphasised that the status quo can be disturbed by an interlocutory injunction and that 'the truth of the matter is that no real principles can be laid down'.

6.2 Legal principles - Doctrine of lost modern grant and the Prescription Act 1832 (UK)

[42] National Bank Australia Ltd v Joyce [2012] WASC 224 [88] applying the principle enunciated by M Leeming, R Meagher, D Heydon, Equity Doctrines and Remedies (4^th ed, 2002) 774 - 775.

In Gangemi v Watson, Owen J relevantly found:[43]
The Prescription Act 1832 (UK) was expressly adopted by the statute 6 Will IV No 4 (1836) (WA). It continues to apply in this State. It applies to land under the Torrens System: see Di Masi v Piromalli (1980) WAR 57 per Jones J at 59-60.
The effect of s 2 and s 4 is that a claim to an easement can be established by proof of uninterrupted user for a period of 20 years.
[43] Gangemi v Watson (Unreported, WASC, Library No 930473, 1 September 1993) 31; overturned on appeal but not in respect of relevant principles of law: Gangemi v Watson (1994) 11 WAR 505.
More recently, in Maio v City of Stirling [No 2], the Court of Appeal summarised the principles that apply to the doctrine of lost modern grant and the Prescription Act 1832 (UK) as follows:[44]
[44] Maio v City of Stirling [No 2] [2016] WASCA 45 [72] - [78] (Murphy J, Martin CJ & Buss J agreeing).
The judge observed, without challenge in this appeal, that easements may be acquired by prescription under the doctrine of lost modern grant or the Prescription Act 1832 (UK) which was adopted in this State in 1836 by 6 Will IV No 4. The doctrine of lost modern grant was not affected or repealed by the Prescription Act, which did little more than restate the doctrine in statutory form. His Honour added that, for present purposes, it did not matter whether the easements were created under the doctrine of lost modern grant or the Prescription Act because differences between the two were immaterial on the facts of this case and that both doctrines require proof of 20 years continuous user as of right.
Prescription was introduced into the law for the public benefit so that rights of property 'might not be for ever uncertain': Delohery v Permanent Trustee Co of New South Wales. In general terms, prescription is founded on the premise that where a court finds an open and uninterrupted use of A's property by B for a long period unexplained, the court will, if reasonably possible, find a lawful origin for the use in question: Attorney General v Simpson; Delohery; Bakewell Management Ltd v Brandwood. In other words, in these circumstances, the law will 'clothe the fact with right': Moody v Steggles.
The use must be 'as of right': R v Oxfordshire County Council, Ex parte Sunningwell Parish Council; Piromalli v Di Masi. In order to be 'as of right', the use must be inconsistent with any other reasonable inference, as if the use is equally consistent with two reasonable inferences, user 'as of right' is not established: Gardner v Hodgson's Kingston Brewery Co Ltd; Patel v W H Smith (Eziot) Ltd.
In R (Barkas) v North Yorkshire County Council, Lord Neuberger (with whom four other members of the court agreed) said:
The origin of the expression 'as of right' … effectively for present purposes … was authoritatively discussed by Lord Hoffmann in R v Oxfordshire County Council, Ex p Sunningwell Parish Council [2000] 1 AC 335 … As he said, it originates from the law relating to the acquisition of easements by prescription. Before examining what Lord Hoffmann said, it is, I think, helpful to explain that the legal meaning of the expression 'as of right' is, somewhat counterintuitively, almost the converse of 'of right' or 'by right'. Thus, if a person uses privately owned land 'of right' or 'by right', the use will have been permitted by the landowner - hence the use is rightful. However, if the use of such land is 'as of right', it is without the permission of the landowner, and therefore is not 'of right' or 'by right', but is actually carried on as if it were by right - hence 'as of right'. The significance of the little word 'as' is therefore crucial, and renders the expression 'as of right' effectively the antithesis of 'of right' or 'by right'.
In his discussion on the point in Ex p Sunningwell, Lord Hoffmann began by explaining that 'Any legal system must have rules of prescription which prevent the disturbance of long-established de facto enjoyment' (p 349), and went on to explain that a combination of statutory and common law had resulted in such enjoyment having to be 20 years 'nec vi, nec clam, nec precario: not by force, nor stealth, nor the licence of the owner': p 350. He went on to explain that each of 'these three vitiating circumstances' would amount to 'a reason why it would not have been reasonable to expect the owner to resist the exercise of the right', namely, 'in the first case, because rights should not be acquired by the use of force, in the second, because the owner would not have known of the user and in the third, because he had consented to the user, but for a limited period': p 351. For the avoidance of doubt, I should interpose that the reference to 'a limited period' clearly includes an indefinite period (as would arise under an unlimited but revocable permission), and that the word 'limited' was meant to be contrasted with 'permanent'. Lord Hoffmann ended his discussion by citing with approval Lord Lindley's statement in Gardner v Hodgson's Kingston Brewery Co Ltd [1903] AC 229, 239 that 'the words "as of right" were intended "to have the same meaning as the older expression nec vi, nec clam, nec precario"', a view also expressed by Lord Davey at p 238.
…
In Sunningwell [2000] 1 AC 335 … Lord Hoffmann indicated that whether user was 'as of right' should be judged by 'how the matter would have appeared to the owner of the land', a question which must, I should add, be assessed objectively. (emphasis added)
His Lordship, in the same case, also quoted Gale on Easements to the effect that 'acquiescence is the foundation of prescription' and referred to the observations of Fry J in Dalton v Henry Angus & Co.
In Dalton, Fry J said:
The Courts and the Judges have had recourse to various expedients for quieting the possession of persons in the exercise of rights which have not been resisted by the persons against whom they are exercised, but in all cases it appears to me that acquiescence and nothing else is the principle upon which these expedients rest. It becomes then of the highest importance to consider of what ingredients acquiescence consists. In many cases, as, for instance, in the case of that acquiescence which creates a right of way, it will be found to involve, 1st, the doing of some act by one man upon the land of another; 2ndly, the absence of right to do that act in the person doing it; 3rdly, the knowledge of the person affected by it that the act is done; 4thly, the power of the person affected by the act to prevent such act either by act on his part or by action in the Courts; and lastly, the abstinence by him from any such interference for such a length of time as renders it reasonable for the Courts to say that he shall not afterwards interfere to stop the act being done … but I cannot imagine any case of acquiescence in which there is not shewn to be in the servient owner; 1, a knowledge of the acts done; 2, a power in him to stop the acts or to sue in respect of them; and 3, an abstinence on his part from the exercise of such power. That such is the nature of acquiescence and that such is the ground upon which presumptions or inferences of grant or covenant may be made appears to me to be plain, both from reason, from maxim, and from the cases.
As regards the reason of the case, it is plain good sense to hold that a man who can stop an asserted right, or a continued user, and does not do so for a long time, may be told that he has lost his right by his delay and his negligence, and every presumption should therefore be made to quiet a possession thus acquired and enjoyed by the tacit consent of the sufferer. But there is no sense in binding a man by an enjoyment he cannot prevent, or quieting a possession which he could never disturb. (emphasis added)
Fry J in Dalton also referred to the observations of Thesiger LJ in Sturges v Bridgman, where his Lordship said, in delivering the judgment of the Court of Appeal:
Consent or acquiescence of the owner of the servient tenement lies at the root of prescription, and of the fiction of a lost grant, and hence the acts or user, which go to the proof of either the one or the other, must be, in the language of the civil law, nec vi nec clam nec precario; for a man cannot, as a general rule, be said to consent to or acquiesce in the acquisition by his neighbour of an easement through an enjoyment of which he has no knowledge, actual or constructive, or which he contests and endeavours to interrupt, or which he temporarily licenses. It is a mere extension of the same notion, or rather it is a principle into which by strict analysis it may be resolved, to hold, that an enjoyment which a man cannot prevent raises no presumption of consent or acquiescence. (emphasis added)
The plaintiff bears the onus of proof in respect of the elements to be proved in respect to both causes of action (easement by prescription by the doctrine of lost modern grant or pursuant to the Prescription Act).
In Maio, the Court of Appeal pointed out that the elements are identical whether in respect of the doctrine of lost modern grant or under the Prescription Act, and may be conveniently summarised as comprising:[45]
(a)open and uninterrupted use of A's property by B for at least 20 years; and
(b)the use has been open and not by stealth, force and violence or in secret.
[45] Maio v City of Stirling [No 2] [2016] WASCA 45 [72] - [78].
In calculating whether the 20-year prescription period has been satisfied, the alleged claimant owner may add to his or her own period of use, any period of use of his or her predecessors in title by acquiescence, providing that there has been no interruption between the periods.[46]
[46] Pekel v Humich [1999] WASC 65 [135] (Templeman J); applying Auckran v Pakuranga Hunt Club (1904) 24 NZLR 235, 240 ‑ 241; see also, Sunshine Retail Investments Pty Ltd v Wulff [1999] VSC 415 [145] (Hedigan J); Bradbrook, Easements and Restrictive Covenants in Australia (3^rd Ed) (2011) [5.15].
It is important to note that the Full Court of the Supreme Court of Western Australia in Gangemi v Watson held that a prescriptive easement was, on the facts, established over a laneway notwithstanding an interruption of user for a period of four years, whereby a predecessor in title chose not to use the laneway for that period.[47] Justice Seaman (with whom Ipp and Wallwork JJ agreed) found that there had been continuous use during the period in question and thus the assertion of a continuous right.

6.3 Legal principles - Equitable easements

[47] Gangemi v Watson (1994) 11 WAR 505.

There are two forms of proprietary estoppel.
The first form originates from Dillwyn v Llewellyn[48] (1862) 4 De GF & J 517; 45 ER 1285. In that type of case, equity affords relief on detrimental reliance created by encouragement by the owner of land as to the future acquisition of property.[49]
[48] Dillwyn v Llewellyn (1862) 4 De GF & J 517; 45 ER 1285.
[49] Giumelli v Giumelli [1999] HCA 10; (1999) 196 CLR 101; Sidhu v Van Dyke [2014] HCA 19; (2014) 251 CLR 505; Priestley v Priestley [2017] NSWCA 155 [7] (Macfarlan JA).
The second form originates from Ramsden v Dyson.[50] It is proprietary estoppel by standing by, or acquiescence, and may provide the basis for the operation of an equitable estoppel as to the assumption of a future right.[51] It is this form of estoppel that is relied upon by the plaintiff.
[50] Ramsden v Dyson (1866) LR 1 HL 129.
[51] Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7; (1988) 164 CLR 387, 459 (Gaudron J).
The Court of Appeal recently set out principles are relevant to a claim of proprietary estoppel by acquiescence as follows:[52]
[52]Rowe v The Roman Catholic Archbishop of Perth [No 2] [2022] WASCA 28 [28] - [32] (citations omitted).
In Meagher, Gummow & Lehane's Equity: Doctrines and Remedies, the doctrines of proprietary estoppel by encouragement and proprietary estoppel by acquiescence are summarised as follows:
The estoppel associated with Dillwyn v Llewelyn is otherwise known as estoppel by encouragement. It binds the donor of property where after the making of an imperfect gift, the donor induces the done to act on the assumption that the imperfect gift is effective or on the expectation that it will be made effective. The other estoppel, that descended from Ramsden v Dyson is otherwise known as estoppel by acquiescence or standing by. By that estoppel, equity binds the owner of the property who induces another to expect that an interest in the property will be conferred on that other person.
The estoppels serve the 'same fundamental purpose', that is, the 'protection against the detriment which would ﬂow from a party's change of position if the assumption (or expectation) that led to it were deserted'. The estoppel serves to vindicate the expectation or assumption of the plaintiff against a defendant who seeks unconscionably to resile from the expectation he or she has created or the assumption in which he or she has acquiesced. A corollary of this principle is that a plaintiff is not entitled to relief that goes further than vindicating the expectation or assumption.
The elements common to estoppel by encouragement and estoppel by acquiescence are as follows:
(a)the plaintiff assumes the future acquisition of ownership of property;
(b)the defendant knows the plaintiff holds the assumption;
(c)the plaintiff's assumption was induced, encouraged or acquiesced in by the defendant;
(d)the plaintiff relies on the assumption to his or her detriment;
(e)it is lawful for the defendant to satisfy the plaintiff's assumption; and
(f)it would now be against the conscience for the defendant to be permitted to depart from the assumed state of affairs.
To found an estoppel by encouragement, the representation, assurance or promise must be clear in the sense that the words used by the defendant must be able to be understood by the plaintiff in a particular sense, thereby providing the basis for the assumption or expectation upon which the plaintiff acts. In Sullivan v Sullivan, Hodgson JA, with whom McColl JA agreed, expressed the point as follows:
Generally, a promise or representation will be sufficiently certain to support an estoppel if it was reasonable for the representee to interpret the representation or promise in a particular way and to act in reliance on that interpretation, thereby suffering detriment if the representor departs from what was represented or promised. Generally, if there is a grey area in what is represented or promised, but it was reasonable for the representee to interpret it as extending at least to the lower limit of the grey area and to act in reliance on it as so understood, I see no reason why the Court should not regard the representation or promise as sufficiently certain up to this lower limit.
Proprietary estoppel cases are exceptions to the general rule that a person who spends money on the property of another does not thereby acquire a proprietary interest in the other's property.

7.0 Have the plaintiff's made out a prima facie case?

7.1 Easement by prescription or by lost modern grant

As set out above, both doctrines require proof of 20 years of continuous use as of right. As Murphy J pointed out in Maio v City of Stirling [No 2], in order for the use to be as of right, the use must be inconsistent with any other reasonable inference, and if the use is equally consistent with two (or more) reasonable inferences, the use as of right is not established.[53] To be use as of right, it must be use without the permission of the landowner but carried on as if it were by right.[54]
[53] Maio v City of Stirling [No 2] [2016] WASCA 45 [74].
[54] R (Barkas) v North Yorkshire County Council [2015] AC 195 at 205-6 [14] (Lord Neuberger of Abbotsbury); applied in Maio v City of Stirling [No 2] [2016] WASCA 45 [75].
The defendant submits that the plaintiff is unable to demonstrate any serious question to be tried or make out a prima facie case of easement by prescription or by lost modern grant for two reasons.
First, the defendant submits that the plaintiff's claimed use was granted by him by permission pursuant to the terms of the 1986 agreement. Consequently, the defendant submits that access to the bore site or to the pipeline, and to the flow of water through the pipeline to the plaintiff's land, has been granted by permission, not as of right. The defendant also contends the execution of the 2004 deed to allow transfer of Lot 20 to Shane and Emma demonstrates that access to the bore site and to the pipeline, and receipt of water flowing through the pipeline, was still governed by the 1986 agreement, and was therefore granted by the defendant's permission, as recently as 2004, less than 20 years ago.
The defendant submits this issue alone is fatal to any easement arising by prescription or under the doctrine of lost modern grant.
Second, the defendant argues that the plaintiff only became the owner of the Gillingarra School Grounds in 2006, which is less than 20 years ago. The defendant also argues that even if the leasehold interest acquired by the plaintiff in or about March 2001 is relevant, the plaintiff was excluded from the defendant's land sometime in February 2021, which use would have been for a period less than 20 years.
The plaintiff disagrees and submits that the defendant's submission overlooks a critical fact and that is by the 1986 agreement, the defendant permitted the bore site owner (the Crown) to use the pipeline area and did not give permission to the Gillingarra School Grounds owner to use the area.
Although the court can only assess the merits of an applicant's case in an application for urgent interlocutory orders in a rough and ready way, on the plaintiff's case taken at its highest, there is evidence before the court that the plaintiff's members have been entering the defendant's land for the purpose of inspecting the pump at the bore site and the associated infrastructure continuously at least since 1986 (if not from 1984) until 2021. Whether this use could ultimately be found by the court as of right and not also consistent with the inference that the defendant gave permission to the plaintiff's members to enter his land, will turn upon the evidence given at trial.

On the plaintiff's case at its highest, I am satisfied that there is a serious question to be tried as to whether an easement exists over the disputed area of the defendant's land in favour of the plaintiff. I note, however, that on the evidence presently before the court that the plaintiff's case may not as strong as it contends it to be.

7.2 Easement by proprietary estoppel

The plaintiff claims there is a serious question that the defendant's failure to object to the owners of the Gillingarra School Grounds use of the pipelines between 1984 and 2001 constituted acquiescence that the plaintiff enjoyed an easement.
The plaintiff says it detrimentally relied upon the assumption that it had an easement in its favour by since at least 2001 by carrying out inspections and maintaining the pump and infrastructure, by paying for the cost of installing a new pump and other infrastructure, and by not taking any steps to secure an alternative water source over several decades.
The plaintiff argues that it will suffer detriment if the assumption that it has an easement is not fulfilled.
The defendant claims that there is no evidence of the plaintiff's state of mind that it made or relied upon any assumption that it had an easement. The defendant also argues that the parties' conduct must be considered in light of the terms of the 1986 agreement, which was an easement granted to the dominant tenement (being the 25m² of land which was to be subdivided and transferred to the Crown). The defendant claims he only performed his obligations under that agreement. The defendant points out that the plaintiff now recognises that the 1986 agreement did not create an easement whereby the dominant tenement was the Gillingarra School Grounds. The defendant also contends that the evidence does not establish acquiescence on the part of the defendant as there is no evidence of any encouragement directly or indirectly by the defendant of any activities of the plaintiff.
When the plaintiff's evidence at its highest is considered, I am satisfied there is a serious question to be tried. This is because it may be open to infer from the plaintiff's members' conduct in conducting the weekly inspections that the plaintiff had formed an assumption there was an easement over part of the defendant's land and that in the absence of any objection by the defendant until April 2021, it is open to infer the defendant acquiesced in that assumption.
Whether the plaintiff will be able to make out its case at trial in respect of this claim is a matter that will turn upon not only the terms and circumstances of the entering into the 1986 agreement, but also the evidence of the members of the plaintiff and of the defendant and others about inspections, maintenance and repair of the pump and associated infrastructure on the defendant's land.

8.0 Balance of convenience

It is an established principle that a plaintiff must show a sufficient likelihood of success to justify the status quo being preserved until trial. How strong the probability of success that a plaintiff must show depends upon the rights asserted by the plaintiff and the practical consequences that might flow from the orders the plaintiff seeks.[55]
[55] Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57, 82 (Gummow & Hayne JJ); see also Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618, 622 (Kitto, Taylor, Menzies & Owen JJ).
The strength of a plaintiff's case and the balance of convenience should not be considered independently. I must also consider if there is any prejudice to the parties or to any other member of the public who is affected.
Despite the fact that from the plaintiff's land (the Gillingarra School Grounds) the defendant's land cannot be entered directly other than through Lot 11 and Lot 21, the plaintiff seeks an interlocutory injunction:
(a)to compel the defendant to remove chains and locks obstructing the plaintiff's enjoyment of an easement conferring the right to access the defendant's land to maintain the pipeline that supplies water from the bore, which is the subject of the 1986 agreement; and
(b)until judgment or further order, restraining the defendant from obstructing the plaintiff's enjoyment of the claimed easement.
In effect, the plaintiff seeks injunctive orders which are substantially the same as the injunctive orders it seeks if successful at trial. It is questionable but not determinative as to whether these orders would preserve the status quo, because the defendant has sought to exclude the plaintiff from his land since at least April 2021, which efforts to exclude the plaintiff have largely been unsuccessful and have led to a great deal of acrimony between the parties.
As the defendant's counsel pointed out in oral submissions, the interlocutory injunction sought by the plaintiff would have no utility because the orders sought do not provide a right of access by the plaintiff to Lot 11 and Lot 20. In any event, even if Shane and Emma and Pamela were joined as defendants to the action, in the absence of any additional material evidence, I would not make any interlocutory orders restraining the defendant, Shane, Emma and Pamela from prohibiting the plaintiff from entering their land to access the bore, infrastructure and pipelines that lay on or under the areas specified in the 1986 agreement.
This is because, having read all of the affidavit material, it is clear that at this point in time there appears regrettably to be a very poor and acrimonious relationship between the parties. Not only does the defendant wish to exclude the plaintiff's members from his land, but the plaintiff also wishes to exclude the defendant, Shane, Emma and Pamela from its land.
Importantly, the only pressing and urgent issue raised in the disputed issues between the parties at this present time is to put in place a mechanism to provide for the continuous and uninterrupted supply of water from the bore to the Gillingarra School Grounds. The real issue of prejudice that the plaintiff has suffered since February 2022 arises from the fact that the pump on the bore site has been malfunctioning and needed to be replaced. There is no dispute between the parties as to who should perform any remedial work to rectify the consistent flow of water, and that is the independent pump contractor, Webb & Co.
I note that the defendant had offered to enter into an undertaking to avoid the hearing and determination of this application for an interlocutory injunction by undertaking not to interfere with the supply of electricity to the pump for the bore or interfere with the operation of the pump at any time in which either of the tanks located on Lot 11 are not full, during such times as the pump is functioning properly and operating within normal parameters on condition that no member of the plaintiff enter Lot 21, Lot 11 or Lot 20 without the prior written permission of the registered proprietors of this land.[56] It is my view that, in part, this undertaking should be the subject of interlocutory restraining orders.
[56] Affidavit of Julie Ann Minett sworn 28 April 2022, Attachment JAM-4, 8 - 9.
I am not of the opinion that any specific interlocutory orders should be made that prohibit the plaintiff's members from entering the defendant's land or prohibiting the defendant from entering the plaintiff's land. If either party wishes to prohibit the other from entering their land, they are entitled to do so by exercising their common law right to do so.
To facilitate the reasonable and appropriate steps that need to be taken to ensure the supply of water, I am of the opinion that it is in the interests not only of the parties but also of other members of the community that interlocutory orders be put in place which provide for a procedure of inspection and if necessary repair work to the pump and associated infrastructure as follows:
(a)by imposing a restraint on the defendant from interfering with the supply of electricity or the operation of the pump when the tanks on Lot 11 are not full, during such times as the pump is functioning properly and operating within normal parameters;
(b)requiring the defendant to take reasonable steps to ensure the pump is functioning properly and within normal parameters;
(c)requiring the plaintiff to provide free access to Webb & Co to the plaintiff's land and to the pipelines and water tanks on Lot 11, if notice is given by the defendant to the plaintiff that the pump on the bore site on the defendant's land is not functioning properly and operating within normal parameters. Where notice is given and following conferral between the parties, it is necessary for Webb & Co to inspect the pump, the pipeline and any infrastructure, the defendant is to permit a member of the plaintiff, Neil Botha, to accompany an authorised representative of Webb & Co when that inspection on the defendant's land, pipeline, pump and other associated infrastructure takes place; and
(d)requiring the defendant to allow Webb & Co to carry out any necessary repairs and rectification work.
Because of the acrimony between the parties, I formed the view that the plaintiff should be granted a limited right of inspection only of the defendant's land in the company of the independent pump repairer, and only on condition that the plaintiff is to provide free access to the independent expert of its land, and to the pipeline and water tanks on Lot 11.

Annexure A

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
EC
Associate to the Honourable Justice Smith
4 MAY 2022