John Dahlsen Superannuation Fund Pty Ltd v Robert Dove
[2022] VSC 34
•11 February 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PROPERTY LIST
S ECI 2021 02716
| JOHN DAHLSEN SUPERANNUATION FUND PTY LTD (ACN 089 948 907) | First Plaintiff |
| FRAIS FARMS PTY LTD (ACN 132 121 656) | Second Plaintiff |
| – v – | |
| ROBERT REGINALD DOVE | First Defendant |
| CHRISTINE DOVE | Second Defendant |
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JUDGE: | McDonald J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 6, 7, 8 December 2021 |
DATE OF JUDGMENT: | 11 February 2022 |
CASE MAY BE CITED AS: | John Dahlsen Superannuation Fund Pty Ltd & Anor v Robert Dove & Anor |
MEDIUM NEUTRAL CITATION: | [2022] VSC 34 |
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PROPERTY LAW — Dispute over access to common property — Whether unused public road adjacent to common property owned by defendants — Unused public road recorded on certificates of title and plan of subdivision — No exception to indefeasibility of title — Implied easement giving plaintiffs right of access to common property — Transfer of Land Act 1958 (Vic) ss 42, 98 — Subdivision Act 1988 (Vic) ss 12(2), 24(2) — Road Management Act 2004 (Vic) s 17.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr S R Horgan QC and Mr B J Murphy | Michael Trumble Legal |
| For the Defendants | In person |
HIS HONOUR:
Introduction
The first plaintiff is the registered proprietor of farming land situated at 690 Aitkens Lane, Bengworden and described as Lots 3, 4, 8 and 9 in Plan of Subdivision PS 620127S. The land is contained in Certificates of Title volume 11108 folio 162, volume 11108 folio 163, volume 11166 folio 541 and volume 11166 folio 542 (together ‘Deighton View’). Mr John Dahlsen is a director of the first plaintiff and the registered proprietor of the land at 615 Aitkens Lane, Bengworden (‘Wasleys’).[1] The second plaintiff, Frais Farms Pty Ltd, holds a licence over Lots 3 and 4 of Deighton View and conducts farming operations on the land.
[1]Exhibit P1, ‘Witness Statement of John Dahlsen’, 18 October 2021, [5].
The first and second defendants, Mr Robert Dove and Ms Christine Dove, are the registered proprietors of land situated at 630 Aitkens Lane, Bengworden and 635 Aitkens Lane, Bengworden. The land is described as Lots 2, 6 and 7 in Plan of Subdivision PS 620127S and contained in Certificates of Title volume 11108 folio 166, volume 11157 folio 772 and volume 11157 folio 773 (together ‘the defendants’ land’).
The present proceeding concerns a stretch of land known as Aitkens Lane or Aitkens Road (hereafter referred to as Aitkens Road). Aitkens Road runs adjacent to both the first plaintiff’s and defendants’ land and provides access to a stretch of internal road set aside as common property for the purposes of carriageway that runs along Lots 6 and 7 (‘the common property track’). Aitkens Road provides access to Lots 2, 3 and 4 via the common property track. The plaintiffs’ position is that the only practicable means of access to Deighton View and Wasleys is via Aitkens Road.[2]
[2]Exhibit P1, ‘Witness Statement of John Dahlsen’, 18 October 2021, [3].
In June 2021 the defendants erected a swinging gate on the boundary between their property at Lot 6 and Aitkens Road (‘Gate C’). Gate C was kept locked by the defendants between 28 July 2021 and 5 August 2021,[3] blocking the plaintiffs’ access to the common property via Aitkens Road. It is common ground that Annexure A to this judgment accurately sets out the disputed access point to the common property from Aitkens Road.
[3]Defendants, ‘Defence’, 3 September 2021, [5].
The plaintiffs claim that the defendants’ conduct constitutes interference with the plaintiffs’ rights of way, a public and private nuisance, and unlawful interference with trade and business as a result of which the plaintiffs have suffered and will continue to suffer loss and damage.[4] The plaintiffs seek a permanent injunction to restrain the defendants from obstructing access to the common property. The plaintiffs also seek a declaration that the defendants do not own and have no right to be the registered proprietors of the used and unused public road, Aitkens Road.[5]
[4]Plaintiffs, ‘Statement of Claim’, 2 August 2021, [9], [11], [12], [14].
[5]Plaintiffs, ‘Statement of Claim’, 2 August 2021, [A]–[B].
The primary issue in dispute is whether the defendants own Aitkens Road and are therefore entitled to prevent the plaintiffs from accessing the common property track, and by extension Deighton View and Wasleys, via Aitkens Road. The plaintiffs sought to gain access to the common property track by cutting an entrance in the fence approximately 40 metres to the south of the Gate B. The plaintiffs contend that Aitkens Road is an unused public road within the meaning of s 17 of the Road Management Act 2004 (Vic) in accordance with the map attached to Plan of Subdivision PS 620127S.[6] On this basis, the plaintiffs contend that they are entitled to an easement of way pursuant to s 98 of the Transfer of Land Act 1958 (Vic) (‘TLA’) and s 12(2) of the Subdivision Act 1988 (Vic).[7] I accept this contention. The defendants contend that the section of Aitkens Road marked on the Plan of Subdivision as an unused public road is in fact land which they own.[8] I reject the defendants’ contention.
[6]CB208, ‘Plan of Subdivision PS 620127S’, 21 May 2007; Plaintiffs, ‘Statement of Claim’, 2 August 2021, Annexure A.
[7]Plaintiffs, ‘Statement of Claim’, 2 August 2021, [8].
[8]Transcript of Proceedings, T 116 L 1–2 (7 December 2021).
Background
It is not in dispute that, for many years prior to the defendants’ purchase of their property, Deighton View and the land in Plan of Subdivision PS 620127S (‘Plan of Subdivision’) were accessed via a gate at the southeast corner of Lot 6 on the defendants’ land. From this point, the remaining lots were accessed via the common property track at Aitkens Road.
The defendants purchased the land at 635 Aitkens Lane, Bengworden, which houses their residence, from their predecessor in title, Mr Scarlett, in late 2007. The defendants purchased the land at 630 Aitkens Road, Bengworden, from the first plaintiff in 2008.[9] The defendants presently operate a farming business on the land at 630 Aitkens Road, Bengworden. On 7 March 2008 the defendants were granted a transfer of the grazing licence (No. 1600677) over parts of Aitkens Road by the Department of Environment, Land, Water and Planning (‘DELWP’).[10] The grazing licence was granted for the purposes of grazing over an unused public road, being Aitkens Road.
[9]Transcript of Proceedings, T 147 L 8–26 (8 December 2021).
[10]CB227, ‘Letter from Department of Sustainability and Environment to Robert Smart & Associates: Transfer of Licence No. 1600677 from Scarlett to Dove’, 7 March 2008.
Deighton View and Wasleys were advertised for sale from mid-June 2021.[11] Shortly thereafter, on 17 June 2021, Mr Dahlsen received a letter from the defendants alleging that access to the common property via Lot 6 constituted trespass and advising that the land would be fenced off.[12] In June 2021 the defendants erected Gate C.
[11]Exhibit P1, ‘Witness Statement of John Dahlsen’, 18 October 2021, [8].
[12]CB269, ‘Letter from Robert and Christine Dove to John Dahlsen’, 17 June 2021.
On 18 June 2021 Mr Dahlsen sent a letter to the defendants proposing to move Gate B 40 metres down Aitkens Road to permit access to the common property or, alternatively, to cut another entrance in the fence some forty metres to the south of the commencement of the common property track along Aitkens Road.[13] The plaintiffs contend that the proposed entrance is on land which forms part of the unused public road, while the defendants contend that it is on their property.[14] In an email dated 22 June 2021, Mr Dahlsen advised the defendants of his intention to install gates 40 metres down from Gate B on Aitkens Road.[15]
[13]CB271, ‘Email from John Dahlsen to Christine Dove: R & C Dove — Deighton View 630 Aitkens Road PS 620127S’, 18 June 2021.
[14]Transcript of Proceedings, T 116 L 1–2 (7 December 2021).
[15]CB277, ‘Email from John Dahlsen to Christine Dove: R & C Dove — Deighton View 630 Aitkens Road PS 620127S’, 22 June 2021.
On 24 June 2021 the defendants informed Mr Dahlsen by email that Gate C would remain open until the dispute was resolved by the East Gippsland Shire Council (‘EGSC’) and the DELWP.[16] Gate C was subsequently kept open other than between 28 July 2021 and 5 August 2021 when the gate was locked by the defendants.[17]
[16]CB281, ‘Email from Christine Dove to John Dahlsen: R & C Dove — Deighton View 630 Aitkens Road PS 620127S’, 24 June 2021.
[17]Defendants, ‘Defence’, 3 September 2021, [5].
The present proceeding was commenced on 2 August 2021. An application for an interlocutory injunction was heard by McMillan J on 6 August 2021. McMillan J made orders restraining the defendants from interfering with the plaintiffs’ access to Aitkens Road via Gate C and requiring the defendants to keep Gate C unlocked.[18] A further interlocutory application was heard on 16 August 2021 before Forrest J. On 17 August 2021 his Honour made orders requiring the defendants to provide the plaintiffs with access to the common property via Gate C until the trial of the proceeding or until further order.[19]
[18]Order of McMillan J in John Dahlsen Superannuation Fund Pty Ltd v Robert Reginald Dove (Supreme Court of Victoria, S ECI 2021 02716, 6 August 2021).
[19]Order of Forrest J in John Dahlsen Superannuation Fund Pty Ltd v Robert Reginald Dove (Supreme Court of Victoria, S ECI 2021 02716, 17 August 2021).
On 13 September 2021, Mr Dahlsen signed a contract for the sale of Deighton View to Mr Kim Martin, a director of the second plaintiff.[20] Mr Dahlsen’s evidence is that he has given an undertaking to Mr Martin that if he is unable to provide unimpeded access to Deighton View, Mr Martin may elect to terminate the contract of sale.[21]
[20]CB236, ‘Contract of Sale of Land: Deighton View, 690 Aitkens Road, Bengworden, VIC 3875’, 13 September 2021.
[21]Exhibit P1, ‘Witness Statement of John Dahlsen’, 18 October 2021, [10].
Acting on the advice of the EGSC, the DELWP gave notice to the defendants by way of a letter dated 12 August 2021 that the part of the grazing licence which related to the unused road would be cancelled.[22] On 5 November 2021 the defendants’ grazing licence over the point marked as Gate D on Aitkens Road, to the north of Gate B, was revoked by the DELWP.[23]
[22]CB520, ‘Letter from Department of Environment, Land, Water and Planning to Christine and Robert Dove: Part Cancellation of Unused Road Licence No. 1600677 — Parish of Bengworden’, 12 August 2021.
[23]CB521–2, ‘Notice Pursuant to Section 407(1) Land Act 1958’, 12 August 2021.
Indefeasibility of title
The defence case rests upon the defendants’ contention that the Certificates of Title in respect of the land are inaccurate in so far as the certificates do not evidence their ownership of Aitkens Road.[24] The defendants rely upon two aerial images from LANDATA, taken in 1984 and 1991 respectively, which they contend shows the occupation of Aitkens Road adjacent to Gate C and south of Gate B by their predecessors in title, Mr Scarlett and Mr Aitken.[25]
[24]Transcript of Proceedings, T 18 L 22–5, T 19 L 4–6 (7 December 2021).
[25]Transcript of Proceedings, T 155 L 17–20 (8 December 2021); Exhibit D2, ‘Aerial shot of 630 Aitkens Road and surrounding land dated 30 May 1984’; Exhibit D3, ‘Zoomed shot taken from a drone of 635 Aitkens Road and surrounding land’.
The Certificates of Title, which make specific reference to the Plan of Subdivision, mark Aitkens Road as a public road.[26] The Plan of Subdivision clearly identifies Aitkens Road as running adjacent to the common property south of Gate C and Gate B.[27]
[26]CB213, ‘Register Search Statement (Title Search): Volume 10951 Folio 665’, 9 April 2021; CB217, ‘Register Search Statement (Title Search): Volume 11151 Folio 814’, 9 April 2021.
[27]CB208, ‘Plan of Subdivision PS 620127S’, 21 May 2007.
The Torrens system is based upon the principle of indefeasibility of title. That is, the title of a registered proprietor is prima facie indefeasible pursuant to s 42(1) Transfer of Land Act 1958 (Vic) (‘TLA’) unless any of the exceptions to indefeasibility apply. The High Court recently reaffirmed the Torrens system of indefeasibility in Deguisa v Lynn:[28]
It was only in the landmark decisions of the Privy Council in Frazer v Walker and the High Court in Breskvar v Wall that it was fully accepted that the Torrens system established a system of title by registration rather than one of registration of title. That understanding of the scheme of the Torrens system informed this Court’s decision in Westfield Management Ltd v Perpetual Trustee Co Ltd. In that case, the Court unanimously affirmed that the dealings recorded on the certificate of title, together with the information appearing on that folio of the Register Book, provide a purchaser taking his or her title to land from the registered proprietor ‘with the information necessary to comprehend the extent or state of the registered title to the land in question’ so that information extraneous to the certificate of title was immaterial to the indefeasibility of the purchaser’s title. As will be seen, the path to the resolution of the principal issue in the present case is significantly illuminated by the approach in Westfield.[29]
[28](2020) 288 CLR 638.
[29]Ibid 645 [4] (citations omitted).
There is no evidence which calls into question the accuracy of the Certificates of Title which shows the position of Aitkens Road and marks the area adjacent to Gate C as a public road. Ms Dove conceded that the defendants purchased the property as shown on the Certificate of Title which designated Aitkens Road as a public road adjacent to the property.[30] Ms Dove further conceded that the defendants purchased no more than the land shown on Plan of Consolidation PC 365401H (‘Plan of Consolidation’).[31] The defendants’ position that Aitkens Road forms part of the property owned by them is inconsistent with this concession.
[30]Transcript of Proceedings, T 30 L 16–22 (7 December 2021).
[31]Transcript of Proceedings, T 96 L 21–4, L 29–30 (7 December 2021).
Further, the defendants have not pleaded that any of the exceptions to indefeasibility in s 42 TLA are enlivened which would thereby permit the Court to go behind the Certificate of Title. Accordingly, I place no weight on the aerial images from LANDATA and the defendants’ evidence in relation to their predecessors’ holdings as calling into question the designation of Aitkens Road as a public road on the Certificates of Title.
Assuming in the defendants’ favour that it is permissible to go behind the Certificates of Title and the Plan of Subdivision, the defendants have not established that the land identified on the Plan of Subdivision as Aitkens Road is owned by them. The defendants’ grazing licence, which was revoked by the DELWP on the advice of the EGSC on 5 November 2021, is inconsistent with the defendants’ contention that they own Aitkens Road. The licence was premised on Aitkens Road being an unused public road as distinct from land owned by the defendants.[32]
[32]Transcript of Proceedings, T 12 L 26–31, T 13 L 1–4, T 13 L 23–9 (7 December 2021); CB520, ‘Letter from Department of Environment, Land, Water and Planning to Christine and Robert Dove: Part Cancellation of Unused Road Licence No. 1600677 — Parish of Bengworden’, 12 August 2021.
The defendants accept that there is an unused public road known as Aitkens Road somewhere on the land adjacent to and south of Gate C. They contend that the unused public road is in a different location than that which is marked on the Plan of Subdivision and that they own the land which is identified on the Plan of Subdivision as Aitkens Road. Ms Dove submitted that Aitkens Road is approximately 20 metres further to the west than where it is marked on the Plan of Subdivision, and therefore on the defendants’ land.[33] However, Ms Dove was unable to clearly identify the exact position of the unused section of Aitkens Road if, as the defendants contend, it is not where it is marked on the Plan of Subdivision.[34]
[33]Transcript of Proceedings, T 60 L 26–31, T 61 L 1–4 (7 December 2021)
[34]Transcript of Proceedings, T 114 L 30–1 (7 December 2021).
The contract of sale for the purchase of 635 Aitkens Road is not in evidence. However, Ms Dove accepted that the Plan of Consolidation records the land that was purchased by the defendants from the first plaintiff in 2008.[35] This document clearly records the location of Aitkens Road as adjacent to Lot 6 and abutting the common property running south of Gate C.[36] The position of Aitkens Road as marked on the Plan of Consolidation is inconsistent with the defendants’ contention that the unused public road is elsewhere on the land and that Aitkens Road forms part of their holding.
[35]Transcript of Proceedings, T 96 L 21–4, T 96 L 29–31, T 97 L 9–13 (7 December 2021).
[36]CB373, ‘Plan of Consolidation PC 365401H’, 22 March 2005.
The defendants also rely upon a survey map and the accompanying surveyor’s notes prepared by Mr Michael Sadler[37] in support of their contention that the true position of Aitkens Road is 20.12 metres to the west of where it is shown on the Plan of Subdivision. Mr Sadler gave evidence for the plaintiffs and was cross-examined by Ms Dove. It was not put to Mr Sadler in cross-examination that the true position of Aitkens Road is anywhere other than where it is marked on the survey map. The defendants’ contention that the position of Aitkens Road has been inaccurately recorded in the Plan of Subdivision is based on a misunderstanding of the survey map. The reference to 20.12 metres is a reference to the width of Aitkens Road. It is not a reference to Aitkens Road being 20.12 metres further to the west than is shown on the Plan of Subdivision. The surveyor’s notes merely confirm the position of the road as recorded on prior subdivisions.[38] Even if I am wrong in reaching this conclusion, the surveyor’s notes and map are superseded by the information recorded on the Certificate of Title and it is impermissible to have recourse to these materials to determine the boundary of the defendants’ title.[39]
[37]CB489–92, ‘Surveyor’s Report’, 27 March 2006.
[38]Transcript of Proceedings, T 126 L 19–21 (8 December 2021).
[39]See Deguisa v Lynn (2020) 288 CLR 638.
I reject the defendants’ contention that the position of Aitkens Road is inaccurately recorded on the Certificates of Title and the Plan of Subdivision.
The Subdivision Act 1988
Even if I were to find that Aitkens Road was 20.12 metres further to the west of where it is marked on the Plan of Subdivision and therefore on the defendants’ property, the defendants would not be entitled to prevent the plaintiffs accessing the common property via Aitkens Road. Aitkens Road would still be a public road on the defendants’ property which provides an accessway to the common property. Pursuant to s 12(2) of the Subdivision Act 1988, the plaintiffs have any easements and rights necessary as owners of land to access the common property. Section 12(2) states that:
Subject to subsection (3), there are implied—
(a) over—
(i) all the land on a plan of subdivision of a building; and
(ii) that part of a subdivision which subdivides a building; and
(iii) any land affected by an owners corporation; and
(iv) any land on a plan if the plan specifies that this subsection applies to the land; and
(b) for the benefit of each lot and any common property—
all easements and rights necessary to provide—
(c) support, shelter or protection; or
(d) passage or provision of water, sewerage, drainage, gas, electricity, garbage, air or any other service of whatever nature (including telephone, radio, television and data transmission); or
(e) rights of way; or
(f) full, free and uninterrupted access to and use of light for windows, doors or other openings; or
(g) maintenance of overhanging eaves—
if the easement or right is necessary for the reasonable use and enjoyment of the lot or the common property and is consistent with the reasonable use and enjoyment of the other lots and the common property.
Taking the defendants’ argument at its highest, even if I were to find that the defendants do own the land which abuts the common property from Gate C, s 12(2) of the Subdivision Act 1988 operates to prevent the defendants denying the plaintiffs’ access to the common property via Aitkens Road. If as contended by the defendants Aitkens Road is on their property, the plaintiffs would nonetheless be entitled to a declaration that an easement exists which provides them with a right of access to the common property via the common property track.
Conclusion
The defendants are not entitled to prevent the plaintiffs from accessing the common property via the common property track using Aitkens Road. The Certificates of Title clearly show that Aitkens Road is a public road and is not private land owned by the defendants. The principle of indefeasibility of title prevents the Court looking behind what is recorded on the Certificates of Title. The defendants have in any event failed to establish that Aitkens Road is somewhere other than where it is shown on the Plan of Subdivision. Ms Dove conceded that the defendants purchased the property as shown on the Certificate of Title, which designates Aitkens Road as a public road adjacent to the property,[40] and on the Plan of Consolidation.[41] Even if Aitkens Road was owned by the defendants, the plaintiffs would nevertheless have a right of access to the common property via Aitkens Road by reason of an implied easement pursuant to s 12(2) of the Subdivision Act 1988.
[40]Transcript of Proceedings, T 30 L 16–22 (7 December 2021).
[41]Transcript of Proceedings, T 96 L 21–4, L 29–30 (7 December 2021).
In light of the above conclusion, I propose to make the following declaration:
The defendants do not own and have no right to be the registered proprietors of the used and the unused public road Aitkens Road or Lane, Bengworden in the State of Victoria (Aitkens Lane) whether adjacent to that part of the defendants’ land being lot 6 and 7 on Plan of Subdivision PS 620127S or at all.
I propose to make orders in the following terms:
1. The defendants, whether by themselves, their servants, agents or otherwise, be permanently restrained:
(a) from interfering with plaintiffs and their tenants, servants, agents, guests, invitees, transferees and successors in title utilising or accessing by any means whatsoever Aitkens Road adjacent to that part of the defendants' land being lot 6 and 7 in Plan of Subdivision PS620127S and further to the south to the end of that road; and
(b) from interfering with the plaintiffs and their tenants, servants, agents, guests invitees, transferees and successors in title utilising the used and unused public road Aitkens Road so as to access the common prope1iy on Plan of Subdivision PS 620127S.
2. The defendants are required forthwith to:
(a) remove any fences and gates at points A, B, D and E along Aitkens Road as marked on the diagram annexed to this order;
(b) keep permanently unlocked any gate maintained by them, or by their servants, agents or employees, over Aitkens Road as permitted by and for so long as they have a valid Agricultural licence over Aitkens Road; and
(c) upon ceasing to hold a grazing licence over any part of the unused public road Aitkens Road remove any fence or gate crossing that road (including the gate marked B on the diagram attached to this order).
Costs
The sole issue in the proceeding concerned the plaintiffs’ rights to access the common property via Aitkens Road. The plaintiffs have been successful in their claim against the defendants. In the ordinary course the usual order as to costs is that costs follow the event, resulting in an award of costs to the successful party on a standard basis.[42]
[42]Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 63.31.
However, the plaintiffs submit that it is appropriate that costs should instead be ordered on an indemnity basis.[43] To this end, the plaintiffs submit that the defendants intentionally interfered with the plaintiffs’ property rights such that special circumstances exist which justify a departure from the usual position that costs are ordered on the standard basis.[44]
[43]Plaintiffs, ‘Statement of Claim’, 2 August 2021, [D].
[44]Transcript of Proceedings, T 143 L 1–3, L 12–30, T 145 L 4–26 (8 December 2021); see also Bass Coast Shire Council v King [1997] VR 5, 28–9.
The plaintiffs advance several arguments in support of this contention. First, Mr Horgan QC submitted that, properly advised, the defendants would not have pursued a defence based upon an attack on indefeasibility of the kind which the Torrens System of title by registration is designed to avoid.[45] The defendants in this proceeding were self-represented at trial. The writ and statement of claim were filed by the plaintiffs on 2 August 2021. A notice of appearance was filed on behalf of the defendants by Tisher Liner FC Law (‘Tisher Liner’) on 5 August 2021. Tisher Liner subsequently made an application for leave to cease acting for the defendants, which was granted on 12 November 2021. The trial in this proceeding was heard on 6, 7 and 8 December 2021. Mr Horgan QC submitted that the defendants had received legal advice up until Tisher Liner ceased acting on 5 August 2021 and suggested that the solicitors were unwilling to prepare an amended defence, the substance of which was a challenge to the Certificates of Title and Plan of Subdivision.[46] The defence run by the defendants in person before this Court was pleaded for the first time in the amended defence filed on 15 November 2021.[47] Further, Mr Horgan QC submitted that the defendants have been involved in prior litigation of a similar nature and should therefore be well-informed of their property rights.[48] I shall give the defendants an opportunity to make submissions on the question of costs, including whether an indemnity costs order should be made.
[45]Transcript of Proceedings, T 143 L 22–30 (8 December 2021).
[46]Transcript of Proceedings, T 143 L 25–31, T 144 L 1–5 (8 December 2021).
[47]Transcript of Proceedings, T 143 L 31, T 144 L 1–5 (8 December 2021).
[48]Plaintiffs, ‘Outline of Opening Submissions’, [22]; Transcript of Proceedings, T 146 L 6–12, L 20–9 (8 December 2021); see also Fenelon v Dove (2010) 28 VR 618.
Annexure A
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