Johnson v Linke No. Scgrg-94-1705 Judgment No. S6908
[1998] SASC 6908
•14 October 1998
JOHNSON & BANNER V LINKE
[1998] SASC 6908
Williams J
1 During the trial of this action the parties reached a compromise which was made the subject of an order in the "Tomlin" form. A dispute has occurred in the course of giving effect to the terms of the compromise. As a result the plaintiff has applied for an order to carry the compromise into effect; the defendant has applied for an order declaring that the compromise has ceased to be of effect. Each party claims that the other is in default with respect to the compromise agreement (which - in accordance with Practice - forms the schedule to the Tomlin order); the defendant also claims that the agreement by its terms has expired by reason of a time limit which the parties agreed to set themselves.
The Background
2 The parties to this action are the registered proprietors respectively of two neighbouring small farming properties at Willunga. The action concerns registered rights of way and easements and a dispute as to the extent of the enjoyment associated therewith.
3 The parties have a common predecessor in title who divided the whole of the relevant land into two parts with a house property on each part. The two houses are in close proximity to each other but with the house now occupied by the plaintiffs being on high ground overlooking the residence of the defendant on a lower level. In order to gain access to the house (and land) now owned by the plaintiffs, a right of way was created (by the parties’ predecessor) over the land now owned by the defendant; that right of way winds from the main road (Old Willunga Hill Road) through the comparatively flat farming land of the defendant and eventually climbs to the plaintiffs’ house. The right of way runs quite close to the curtilage of the defendant’s house. (The defendant in turn has a water easement and a right of way over the plaintiffs’ land and also is entitled to the benefit of an encumbrance securing a right to draw water). No doubt the complicated series of rights to which I have referred became necessary in order to effect the subdivision.
4 The gradient of the right of way becomes quite steep alongside the defendant’s house and it would not be unexpected that the driver of a vehicle using the right of way in order to approach the plaintiffs’ residence might sometimes choose to get up some speed in order to deal with the hill - especially when vehicle traction becomes uncertain in wet conditions on the unsealed track. It is against this background that considerable friction has developed between the parties as neighbours. With the benefit of hindsight, the route chosen for the plaintiffs’ right of way was less than ideal unless the two houses were to be occupied by those who were prepared to be extremely tolerant of each other. Although the terms of the plaintiffs’ right of way are expressed in standard terms, the defendant has sought to maintain various gates and traffic "humps" - the latter to discourage speed. The defendant is also concerned for the well being of his goats. The parties agree that the situation is unsatisfactory, but they have been able to reach agreement on little else. The personal relationship between the parties is appalling but I am not concerned to attribute blame for the uncomfortable situation.
5 The defendant disputed the extent of the rights which the plaintiffs’ chose to enforce in the course of "passing and re passing" in terms of the rights conferred by the fifth schedule to the Real Property Act 1886 and s89 thereof.
6 The plaintiffs brought these proceedings in October 1994 to obtain declaratory relief and thereby seeking to particularise their rights; the defendant counterclaimed.
7 The action eventually came before me for trial in September 1997 and the Court took a view at Willunga.
8 During the course of the hearing the parties (who were then represented by counsel) intimated that a compromise - at least in principle - was likely.
9 After a series of adjournments the parties (by counsel) informed me that the parties had agreed in draft a form of deed by way of compromise and they asked me to stay proceedings except for the purpose of enforcing the compromise.
10 On 26 November 1997 (see transcript of proceedings p157) I made an order as follows:
"This action having been settled upon the terms set forth in the draft deed annexed to this order and by consent it is ordered that all further proceedings in this action be stayed except for the purposes of enforcement of the compromise (including any mediation which may be thereby required. The parties are to be generally at liberty to apply".
11 I asked that formal minutes be brought before me. It was mentioned that the order would be in the "Tomlin" form. The deed had then not been executed by both parties.
12 There was then the following exchange:
"HIS HONOUR: ...I think that’s the form of a Tomlin order isn’t it?
MR ABBOTT: It is, but what we’ve proposed is a variation upon that, and your Honour can see that in clause 16 on p.11.
MR ROCHOW: 13 and 16.
MR ABBOTT: 13 and 16, yes.
HIS HONOUR: Well, the action is to be stayed except for the purposes of the compromise. I assume at the end of the day there will be a notice of discontinuance filed wouldn’t there?
MR ABBOTT: If the deed is determined then the parties are at liberty to relist.
HIS HONOUR: I suppose we ought to have a provision in here: ‘Provided however, that if the - this order should be made, I think we are able to do it - upon an undertaking by each party that in the event of this deed ceasing to have effect, without the compromise having been carried through, they will consent to the lifting of the stay hereby imposed so as to enable the action to proceed."
How about that? That means that if this thing genuinely breaks down each side has given an undertaking to agree to the stay coming off, that will protect you.
MR ABBOTT: Yes, thank you.
HIS HONOUR: Is that satisfactory.
MR ROCHOW: Yes.
HIS HONOUR: I think I would like to see a draft of this, get one together would you please Mr Abbott and you can give it to my associate, I’ll settle it.
MR ABBOTT: I’ll amend clause 5.7 and draft some minutes as well."
13 On 26 March 1998 in the course of routinely supervising the progress of the matter on a directions hearing I expressed some concern that the parties were apparently proceeding to implement their agreement although the formalities before me had not been completed (in terms of the settling and entry of the Tomlin order).
14 On 2 April 1998 the matter was called on for the purpose of settling the form of order which was thereupon settled and entered. Undertakings to protect the situation as regards access whilst the agreement was being worked out were left in place upon the footing that the reservation in the order of liberty to apply provided a mechanism to secure the discharge of the undertakings "at an appropriate time" (being the phrase which I then used). It was apparent that until the compromise agreement had been carried into effect the plaintiffs required the protection of the Court for the continued enjoyment of the right of way. The agreement contemplated that this disputed right of way would be extinguished; however, it was obvious that the plaintiffs had some need for the preservation of a right to continue to use this same approach road whilst a new alternative access road was constructed. It is in the nature of things that the plaintiffs were entirely dependent upon good weather to construct a new road after settling upon the purchase of some further land. The compromise agreement specifically requires the parties "to deal with each other in good faith and in a co-operative manner regarding the implementation of the agreement." Unfortunately, the parties show little understanding of their mutual obligation to co-operate.
The present applications
15 The parties are now acting in person. Their legal representatives withdrew after the compromise was effected. The plaintiffs have engaged a landbroker (Mr Webber); the defendant continues to have legal advice (as he has informed me), but he chooses to act in person and to deal in person with the plaintiffs’ broker.
The plaintiffs have now made application for an order to enforce the compromise; this application adopts the standard form of order to carry into effect agreed terms when incorporated into a Tomlin order (see 12(1) Lord Atkin Court Forms (1996 issue) Form 38. The procedure is discussed by Lord Atkin at p17 par11.) This procedure enables the compromise to be enforced in the action which gave rise to the compromised dispute without the need for fresh proceedings. The plaintiff has brought this application at my invitation following a series of directions hearings which were held in order to receive reports as to difficulties facing the parties who seem incapable of having any direct conversation with each other.
The plaintiffs now ask that the defendant be required to sign and return to the plaintiffs’ broker his formal approval to the plan which will provide authority for the Lands Title Office to modify the rights of way and encumbrances so as to bring about in one administrative step all the transactions which form part of this compromise. The plaintiff’s land broker gave evidence on oath before me on 2 October 1998 as to progress of the settlement. It seems that upon lodgement of the plan and assessment of stamp duty and subject to formal checking by the Lands Title Office, settlement could take place during the present month. The matter appears to have been brought to a point where settlement can be conducted in early November 1998 (as Mr Linke sought some months ago). In fact Mr Linke has already taken his copy of the plan to the Lands Title Office for informal checking and has satisfied himself that the plan is in order for his signature (subject to the correction of an error which he has detected in a reference number on the plan).
The defendant has brought a cross application seeking a declaration that the compromise agreement has come to an end by effluxion of time (in terms of the deed of compromise). The defendant relies upon a provision in the deed which he asserts as giving him the right to "determine" the deed if the plaintiffs have not settled upon the purchase of the land for a new access road. Upon the face of the deed and if one ignores that which has transpired it would appear that the defendant does have the right which he asserts.
19 It is now argued for the defendant in support of his own application and in opposition to the plaintiff’s motion -that the time limits set by the deed have not been observed by the plaintiffs and the deed has come to an end on 5 June 1998 (being six months from the date which the deed bears).
that the steps in the conveyancing procedure envisaged by the deed has not been followed
and further or in the alternative:
that (forthwith upon settlement under the deed) the defendant should be relieved of his undertakings to provide road access to the plaintiff even although a new alternative access road cannot be built by the plaintiff until after settlement upon purchase of additional land (for this purpose) which will occur concurrently with the extinguishment of the disputed right of way which is to be relinquished as a term of the compromise.
20 The defendant now points to what he claims to be departures from the terms of the deed of compromise and asserts that these departures demonstrate a failure by the plaintiffs to observe their obligations and thus justify the cancellation of the agreement. The defendant claims that the deal automatically comes to an end - in terms of a final settlement - if final settlement is not effected within six months of the date of the deal (5 December 1997).
21 This argument overlooks-
that the defendant has already constructed a new dam as required by the agreement; according to him this was completed by 24 March 1998. The agreement requires him to use this dam (even before final settlement under the compromise) and requires him to avoid using a water easement and right of way "whenever possible"; the defendant has not yet moved his pumping equipment. In a memorandum dated 7 October 1998 the defendant says:
"In relation to my right of way I will need additional time to remove structures belonging to me and to reconstruct my water supply.
I advise the court that I only have one water supply and given that it will be near summer I will need to be protected in this matter. The plaintiffs have previously not objected to such a request.
The coordination of the movement is complicated and involves the Electricity Trust, an Electrician, a Trench digger and Irrigation specialists. Everything needs to be done within two days so that my water supply can be operational in regards to house water and stock water. However coordination of this may well be an issue.
The removal of piping and electrical cabling belonging to myself from the plaintiff’s land will need to be done at a later date if permissible.
Your Honour was going to hear the matter of my reimbursement of jointly owned structures on the plaintiffs land. I have advised the plaintiff that it would seem more sensible to leave existing structures on their land and purchase new ones on mine.
I would appreciate a time being set forth for argument on the matter if the plaintiffs do not consent to pay half ie $750."
(The agreement makes no mention of the cost of these alterations; the defendant can bring forward a vendor and purchaser summons if he wishes the Court to determine the point which he mentions).
that the defendant paid $10,000 to the plaintiffs in terms of the agreement on 12 May 1998 in knowledge of the procedure which was being followed.
that the parties have been continuing since entry of the order of compromise to carry through arrangements for settlement in recent months upon the footing that the defendant was looking for a settlement date in November 1998 to meet his own arrangements for finance. The plaintiffs’ broker came before me on 31 July 1998 and outlined what had been done and what remained to be done. The plaintiffs have contracted to buy land to give them an alternative road access and in the course of hearings before me the plaintiffs have obtained the defendant’s approval in fact to the plan around which settlement hinges. The defendant expressed his approval on 29 September 1998.
22 In deciding how I should proceed I note the inherent power of the court to rectify a Tomlin order if that should be necessary and also the Court’s power to control the date attaching to its orders. Each of these powers could be called in aid if the conduct of the parties standing alone were insufficient justification for the orders which I consider the justice of the case requires for the protection of the parties. Indeed the defendant acknowledges that he is looking for the protection of the court in respect of the substantial works which he has undertaken. In my view it would be unconscionable for the defendant (or the plaintiffs) to be allowed now to walk away from the agreement. (see Stern v McArthur (1988) 165 CLR 489). Specific performance will secure for the parties all that for which they have contracted. The defendant still asserts that he wants to settle and I view his attempted withdrawal as an attempt to get some tactical negotiating advantage.
The Deed of compromise and steps toward settlement
23 The deed contemplates that the plaintiffs will seek to acquire by purchase alternative access to their property via land now owned by Elmslie and Collett respectively. The plaintiffs have arranged contracts accordingly. There is to be a settlement between the parties when Mr Linke is to pay a further $30,000 to the plaintiffs.
24 The deed contemplates that the parties will obtain all necessary approvals to extinguish the existing rights of way; in lieu of their existing access, the plaintiffs are required to acquire additional land from Messrs Elmslie and Collett respectively and to construct thereon a new access road with certain rights of way to be granted to Mr Collett. However, the deed also contemplates that the new access road may not be constructed until after settlement. As a condition of approval the District Council has required the plaintiffs to provide a bond to ensure that a new road is constructed; such a bond has been given.
25 It is clear that the new access road cannot be constructed by the plaintiffs’ contractor until settlement and thereafter will be dependent upon weather conditions.
26 As required by the agreement the plaintiffs have brought the arrangements with Elmslie and Collett to the point of readiness for settlement and the necessary survey and Town Planning consents have been obtained.
27 For the purposes of the deed the plaintiffs "shall be deemed to have acquired" the land from Elmslie and Collett when settlement upon these transactions occurs. The plaintiffs are required to proceed with construction of a new driveway after "acquisition" from Elmslie and Collett (ie after settlement). Therefore the plaintiffs are not yet required to have commenced construction of a driveway.
28 The deed provides that if the plaintiffs "within six months from the execution of this deed" have not settled upon the purchase of the new access road then "either party may by written notice determine this deed". Mr Linke by his application dated 2 October 1998 belatedly has now sought to take advantage of this provision.
The difficulty in the drafting
29 Those who prepared the deed of compromise provided for the final settlement between Johnson and Linke to take place three months after the acquisition by Johnson (and Banner) of the additional land from Collett and Elmslie. However, as a matter of current conveyancing practice it would now be normal for all transactions to be dealt with concurrently rather than consecutively. As Mr Webber explained to the Court the bundle of transactions can now be carried through by endorsement of the consents of all relevant parties upon the Plan of Division which is then treated as containing the conveyances. Stamp duty is assessed upon the plan by identifying the various transactions upon which the plan is based. A series of transactions is thus reduced from a number of documents to a single plan. Mr Webber explained the transaction in the following terms:
"MR WEBBER: ...this document is known as an RTC document which basically contains the conveyance between the parties, Collett and Elmslie to Johnson, it contains the extinguishment of all the rights and the easements which are a condition of the plan of division, it contains the consents of the mortgagees involved whose securities are affected, so that one document really is the only document that is needed to lodge at the Lands Titles Office and that’s in respect when we can settle, on approval of the plan for data, because there’s no more action in that respect, so then the next step is to, as I say, lodge this required document, but in doing that there’s numerous parties that are involved, as you’d appreciate and each of them, before consenting, want to see the complete document, so basically you take a copy of the whole thing, I’ve got a couple of copies here, one of which you may wish to retain, and then they are sent off to all the various parties to execute.
HIS HONOUR: But they will execute presumably subject to settlement? I mean presumably these parties aren’t going to give away their rights until money changes hands?
MR WEBBER: No, the actual - once the documentation, much the same as any other settlement, once the documentation is in order and it’s ready for lodgement, and ready to meet the relevant mortgagees who are producing the titles, then you would settle and exchange funds.
HIS HONOUR: Just let me get this clear. Your plan of division you are ready to lodge now?
MR WEBBER: That’s in.
HIS HONOUR: So that has actually been -
MR WEBBER: That’s in and got a number and just waiting for the plan data to be examined.
HIS HONOUR: So really that’s got to be checked -
MR WEBBER: That’s right.
HIS HONOUR: And that will take about a month or six weeks.
MR WEBBER: That’s your four to six weeks procedure.
HIS HONOUR: And then when that has been done then the document that you’ve just referred to can be -
MR WEBBER: The normal procedure would be that from now on, now that we’ve got a plan that’s been lodged and we’ve got a plan number that we’ve got something that I can take a copy of and send to the relevant parties indicating you know, what the intent is, you know, with all the various conditions on the plan and you know you can generally start working on that now so that - because most parties are fairly keen to settle as soon as they can of course, and you’d be doing this while the plan is sort of working its way up through the Lands Titles Office to be examined.
HIS HONOUR: And then having got the document signed by all the various parties, it will come back to you for the purposes of settlement.
MR WEBBER: Yes, it would, yes.
HIS HONOUR: And at settlement, you will have to organise with various mortgagees to attend. What do they do now, do you have to produce a title, or not?
MR WEBBER: In this particular case yes, because in one case Mr Johnson’s mortgagee of course is acquiring extra land, which virtually is like a collateral mortgage. Instead of preparing a mortgage now, it’s all done by consent under the new regulations..."
30 Mr Webber gave this explanation. Mr Linke drew attention to the requirements of the deed of compromise and explained that his arrangements had been made upon the footing that he would not be required to settle for three months and he asked that settlement proceed upon the basis that it would be in November 1998 to fit in with his arrangements for finance.
31 The following exchange reflects the spirit of the discussion:
"HIS HONOUR: Well Mr Linke suggests that settlement should take place about three months from about last Wednesday, whereas you’re suggesting it could take place a little bit earlier than that.
MR WEBBER: Indeed it could, it everything went smoothly, it’s whether we need to adhere to the original deed I suppose.
HIS HONOUR: Well I must ask Mr Linke. Mr Linke, is there any -
MR LINKE: I’m in a financial position where I would need the three months.
HIS HONOUR: I see.
MR LINKE: So it’s a constraint that I have to stick to.
HIS HONOUR: All right, well if that’s so, that can be accommodated.
MR WEBBER: It gives me a lot more time to do what I’d normally be sort of -
HIS HONOUR: And it also means that in terms of the bulldozing, that the bulldozing and the actual settlement can probably take place closer to the same day. I mean it’s obviously not going to absolutely coincide but if we start now with July, August, September, October, if settlement took place towards the end of October, Mr Johnson has got his bulldozer booked for the third week in October. Looks to me as if Mr Johnson, you bulldozer man made need to put his arrangements off for a week, or two. I think you’d better alert him to that. But looks to me as if you’re pretty well spot on with your arrangements. That’s as it seems now.
MR WEBBER: We’d be well and truly - everything’s sort of set my side, you know.
HIS HONOUR: Right well now perhaps I’ll just ask Mr Linke, what is needed from you in terms of settlement. You mention finance, you’ve paid over a deposit have you?
MR LINKE: Yes, I have, yes.
HIS HONOUR: And you have to pay over a balance?
MR LINKE: Yes.
HIS HONOUR: How much do you have to pay at settlement?
MR LINKE: $30,000.
HIS HONOUR: $30,000, yes. I’m not concerned with your personal situation. You’re in a position to settle are you? Or you will be?
MR LINKE: Yes, I will be at the end of October."
32 I emphasise that it was Mr Linke who nominated early November 1998 as a time for settlement and the parties have been working towards this date in the knowledge of the procedure which Mr Webber was following. At this late stage it would be unconscionable to allow any party to withdraw and as far as I can see it is quite contrary to Mr Linke’s own interests that he should seek to withdraw when he has already carried out the earth works required of him as part of the compromise. He has already made an initial payment of $10 000.00; this could be reversed but his expectations based upon the construction of his new dam could not be satisfied without specific performance. Moreover, without specific performance Mr Linke would still be subject to the right of way to which he objects.
33 In my opinion although the deed is dated 5 December 1997 the conduct of the parties is such that they have waived their rights to rely upon the time clause. The date of 5 December 1997 was inserted arbitrarily; the deed was agreed some weeks earlier and given formal effect on 2 April 1998.
34 Each party has an obligation to proceed with expedition to carry through the steps leading to settlement. The order of the Court did not come into effect until 2 April 1998 and it would be unconscionable for either party to seek to avoid the deal at this late stage after working together in recent months through the various steps toward settlement. "Working together" is the euphemism which I adopt to describe the process involving a series of directions hearings when I have endeavoured to assist the parties in their continuing and sometimes pointless disagreements along the path to find settlement.
35 The deed contains a provision as follows:
"10.1 The parties hereto hereby undertake and agree that they will:-
10.1.1 Deal with the other party in good faith and in a co-operative manner regarding the implementation of the provisions of this deed; and,
10.1.2 Respect and observe the rights of the other party."
36 I note that the deed still would have a residual operation by its terms even if a section of it (dealing with the new road) should cease to have effect. The agreement then provides for further negotiations in good faith and a possible mediation. In my opinion this point has not been reached. The specific terms of compromise were necessarily conditional at the outset of the agreement because it was not then certain that Collett and Elmslie would sell and the attitude of the planning authorities had not been established.
37 In my opinion it is the obligation of the parties now to carry forward the form of documentation prepared by the plaintiffs’ broker being a joint application by the parties to give effect to the conveyancing terms of the deed.
38 On 31 July 1998 Mr Webber the plaintiffs’ land broker came before me in the course of a directions hearing in the presence of the parties when he outlined the steps to achieve settlement. He noted the interests of various mortgagees and the manner in which he proposed that settlement be conducted.
39 Mr Linke set out his requirements in terms of a date for settlement upon the implementation of the procedure put forward by Mr Webber. Mr Linke has proposed a settlement date in November 1998. The parties have clearly acquiesced in working toward such a date and there has been discussion between Mr Linke and Mr Webber. On 29 September 1998 Mr Linke (after consulting with the Lands Title Office) indicated his approval to the LTO document. Upon a directions hearing on that date the following exchange took place:
"MR LINKE: My position still remains the same. I am more than prepared to sign this straight away. I am keen to have Mr Johnson sign away his right of way over my land so I am quite keen to sign that and get things moving. Mr Webber did explain to me that he would only need about 4 days before settlement to do that, but I am prepared to do it straight away. My position still remains the same as far as I would desire some security in relation to the settlement process.
HIS HONOUR: The fact of the matter is that Mr Johnson can’t get in there to put this road through until he has settled with the other two parties, Elmslie and Collett. I am not going to remove the effect of the undertakings which entitle him to use this existing right of way until he has had a reasonable time after settlement to do that. I am not going to give him a great deal of time but I would expect this to be done immediately after settlement but subject to weather conditions. If we suddenly get a great downpour of rain it is going to go on until the ground dries out. It is as simple as that. On the other hand you want the right of way relinquished, Mr Linke, and I am going to see that that happens as soon as possible. Now, that is all I can say. I think the point has been reached where I am not going to allow this matter to drift anymore."
Orders
40 Upon the defendant’s application I refuse to make the orders as sought. I am of the opinion that the deed of settlement has not been terminated as alleged.
41 Upon the plaintiffs’ application I order that the agreement by way of compromise contained in the deed attached to my order of 2 April 1998 be carried into effect and I direct that the defendant forthwith sign and deliver up to the plaintiffs’ broker (Mr Webber) the RTC (as so described in evidence by Mr Webber) which the defendant has already submitted for examination to the Land Titles Office; before so executing the document the defendant is to be at liberty to correct what the defendant claims to be an error so that the relevant reference number of easement D read "TG6069576".
42 Further consideration of the plaintiffs’ application is adjourned and there will be liberty to apply at short notice.
Supplementary
43 In reaching my conclusion that the agreement should be carried into execution I have had regard (in addition to the material on file) to the transcripts of the following hearings:
26 November 1997
26 March 1998
2 April 1998
31 July 1998
29 September 1998
44 I am satisfied that the intervention of the Court is required to facilitate the orderly extinguishment of rights attaching to the existing right of way. I will relieve the defendant of his existing undertakings when it becomes appropriate so to do. I will expect the defendant to rearrange his pumping arrangements by the time of settlement so as to give effect to clause 10.2.2 as his new dam has been constructed. Mr Linke is looking to the plaintiffs to contribute to the cost of moving his equipment. The agreement is silent on this topic but I will hear argument if so required and will treat Mr Linke’s application (if he so wishes) as a vendor and purchaser summons; he will have to amend its terms to encompass the additional relief which he claims.
45 I record that following a hearing on 2 April 1998 to enter judgment upon the Tomlin order I have conducted directions hearings as follows when the parties attended without counsel.
46 I have urged the parties to make use of solicitors or landbrokers to carry out the requirements of the Tomlin order. Mr Linke informs me that he has legal advice but he has declined to appoint a representative to deal with Mr Johnson. Mr Webber has recognised the potential problems if he were to act for both parties. In the result Mr Johnson and Mr Linke have been faced with trying to carry through a settlement which involves many parties (including mortgagees) when they feel unable to speak to each other. It is for this reason that I have held the various directions hearings so that the parties could report to each other in a controlled environment.
47 In support of his application Mr Linke has submitted to me a written analysis of the steps which he perceives as necessary for settlement. It has been carefully prepared in diagrammatic form. An examination of that diagram alongside the deed of compromise will show that Mr Linke’s understanding of the steps toward settlement is not entirely accurate. Indeed the convolutions of the deed of settlement make it difficult to reduce the requirements of the deed to a diagram in the simple form which Mr Linke has adopted. The deed quite clearly contemplates the new road construction following settlement between the parties.
48 I have made it clear to the parties that my function is not to act as a landbroker. All that I can do is to determine the disputes (in effect between vendor and purchaser) as they arise. If the parties cannot agree on the few remaining steps to complete this matter then the Court will have to decide the dispute step by step.
49 Mr Linke has assured me that he has arrangements for funds to be available to him in November 1998. I point out that it is crucial in his own interests that he is able to carry through his outstanding obligation as regards payment.
50 Mr Linke’s point of view is summarised in his memorandum of 7 October 1998:
"In relation to the time given to the plaintiffs to adequately organize the construction of the road I would hope that the court considers the following facts.
There was never any intent, as your Honour could well imagine, for the plaintiffs to have free use of the right of way after I have paid for it. After the payment of $10000 they were suppose(sic) to diligently proceed with the terms of the deed and already a substantial amount of the purchase price has been paid for with no benefit.
In the past the plaintiffs have used the right of way in abuse of their rights and have attempted to harass and intimidate myself and my family to get a better price for the right of way. They have always wanted to build a new driveway but have been keen to make me pay for it! They have succeeded in getting a price for the driveway well in excess of what they have could have reasonably expected and I suppose that justifies their actions.
The plaintiffs use the road with a total refusal to absorb any of the costs of repair. Recently one of the plaintiffs damaged the cattle grid and has refused to pay half the cost of its repair (ie half of $50).
Over time my border collie/kelpie dog has been run over twice and eventually killed. The first plaintiff has driven me at and my children are driven past, as they play with no concern for their safety and at speeds uncontrolled since the removal of the speed hump.
The plaintiffs are not reasonable users of the way and I urge the court not to allow the plaintiffs to further take advantage of this situation and that any extension of time must be on an extreme basis."
51 I understand Mr Linke’s distress and the way in which the continuing dispute is continuing to cause disharmony. I ask all concerned to recognise that the working out of an agreement of this nature does require co-operation (as the parties have specifically agreed).
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