Kettleton v Murray - [2017] QDC 64

DISTRICT COURT OF QUEENSLAND

CITATION:

Kettleton v Murray & Anor [2017] QDC 64

PARTIES:

ROBERT KETTLETON

(applicant)

v

REGINALD ALLAN MURRAY

(first respondent)

and

VALARIE ANNE MURRAY

(second respondent)

FILE NO/S:

D19/16

DIVISION:

Civil

PROCEEDING:

Originating Application

ORIGINATING COURT:

District Court at Gympie

DELIVERED ON:

22 March 2017

DELIVERED AT:

Maroochydore District Court

HEARING DATE:

2^nd March 2017

JUDGE:

Robertson DCJ

ORDER:

Application dismissed

CATCHWORDS:

EASEMENTS : where applicant asserts that a gate across a right of way easement which burdens the land of the respondents substantially interferes with his enjoyment of the right of way; where gate has been there for decades and was there when applicant purchased his property in 2008; where gate is not locked; where easement along with other contiguous easements is for the benefit of 7 properties including the applicant’s and ends in a dead end in an isolated rural setting; where applicant also alleges that the respondents’ cattle congregating around the access gate and the easement itself constitute a serious and substantial interference with his enjoyment of the right of way; where cattle have grazed on the respondent’s property for decades; where applicant also alleges that car bodies deposited near his property access constitute a substantial interference with his enjoyment of the right of way.

EQUITABLE REMEDIES AND DEFENCES : where respondents only took possession of the servient tenement in 2016; where applicant had acquiesced in the gate across the easement and the grazing of cattle from 2008-2014 when he complained to the previous owner but did not commence proceedings after receipt of a solicitor’s letter; where parties had negotiated to resolve the dispute; whether the defence of laches is available; where applicant seeks mandatory injunctions and/or declarations

COUNSEL:

Mr Ferraro for the applicant

SOLICITORS:

RB Lawyers for the applicant

Respondents self- represented

When the respondents, Mr and Mrs Murray, purchased their property at 294 Repeater Station Road in May 2016, they were aware that a right of way easement burdened their property in favour of other residents of Repeater Station Road including the applicant Mr Kettleton. They were also aware that there was a gate across the easement, roughly where their land begins and the public road, Repeater Station Road, ends. They were not aware that the previous owner, Mr Roberson had had some dispute in 2014 with Mr Kettleton and his partner, Ms Baker, about the gate which according to Mr Roberson was resolved when his solicitor sent Mr Kettleton a letter.

Soon after the Murrays moved into their property in August 2016, they became aware of Mr Kettletons’ concerns about the gate. On their unchallenged evidence, Ms Baker has, at times, been quite aggressive towards them in relation to the gate and cattle grazing in the vicinity of the access gate. The parties then negotiated to resolve the dispute, and the Murrays (who are self-represented) annexed to their trial affidavits a number of proposals advanced by Mr Kettleton to them and by them to him, in an attempt to resolve…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kettleton v Murray

Details

AGLC: Kettleton v Murray [2017] QDC 64
Case: [2017] QDC 64
Decision Date: 22 March 2017

CaseChat Overview and Summary

The case of Kettleton v Murray involved a dispute over an easement that granted the applicant the right of way across the respondents’ land. The applicant argued that the presence of a gate across the easement, which had been there for decades and was present when he purchased his property in 2008, substantially interfered with his enjoyment of the right of way. Additionally, the applicant claimed that the respondents' cattle congregating around the access gate and the easement itself constituted a serious and substantial interference with his enjoyment of the right of way, as did car bodies deposited near his property access. The respondents argued that the applicant had acquiesced in the gate and cattle grazing from 2008-2014, and that the defence of laches was available due to the applicant's delay in commencing proceedings.

The primary legal issues for the court to decide were whether the gate and the presence of cattle and car bodies across the easement constituted a substantial interference with the applicant's enjoyment of the right of way, and whether the respondents could rely on the defence of laches given the applicant's acquiescence and delay in bringing the matter to court. The court had to consider the nature and extent of the interference caused by the gate, the cattle, and the car bodies, as well as the applicant's conduct and delay in bringing the proceedings.

In reaching its decision, the court found that the gate, which was not locked, did not substantially interfere with the applicant's enjoyment of the right of way, given its long-standing presence and the isolated rural setting. The court also found that the presence of cattle grazing on the respondents' property, which had occurred for decades, did not constitute a substantial interference with the applicant's enjoyment of the right of way. Furthermore, the court held that the car bodies deposited near the applicant's property access did not amount to a substantial interference. The court also found that the applicant had acquiesced in the gate and cattle grazing from 2008-2014 and had delayed in bringing the matter to court, making the defence of laches applicable.

Accordingly, the court dismissed the application, holding that the applicant was not entitled to the mandatory injunctions and/or declarations he sought. The court's decision was based on the lack of substantial interference caused by the gate, cattle, and car bodies, as well as the applicability of the defence of laches due to the applicant's acquiescence and delay.

Orders

Orders of the court

Application dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Kettleton v Murray & Anor [2017] QDC 64
PARTIES:	ROBERT KETTLETON (applicant) v REGINALD ALLAN MURRAY (first respondent) and VALARIE ANNE MURRAY (second respondent)
FILE NO/S:	D19/16
DIVISION:	Civil
PROCEEDING:	Originating Application
ORIGINATING COURT:	District Court at Gympie
DELIVERED ON:	22 March 2017
DELIVERED AT:	Maroochydore District Court
HEARING DATE:	2^nd March 2017
JUDGE:	Robertson DCJ
ORDER:	Application dismissed
CATCHWORDS:	EASEMENTS : where applicant asserts that a gate across a right of way easement which burdens the land of the respondents substantially interferes with his enjoyment of the right of way; where gate has been there for decades and was there when applicant purchased his property in 2008; where gate is not locked; where easement along with other contiguous easements is for the benefit of 7 properties including the applicant’s and ends in a dead end in an isolated rural setting; where applicant also alleges that the respondents’ cattle congregating around the access gate and the easement itself constitute a serious and substantial interference with his enjoyment of the right of way; where cattle have grazed on the respondent’s property for decades; where applicant also alleges that car bodies deposited near his property access constitute a substantial interference with his enjoyment of the right of way. EQUITABLE REMEDIES AND DEFENCES : where respondents only took possession of the servient tenement in 2016; where applicant had acquiesced in the gate across the easement and the grazing of cattle from 2008-2014 when he complained to the previous owner but did not commence proceedings after receipt of a solicitor’s letter; where parties had negotiated to resolve the dispute; whether the defence of laches is available; where applicant seeks mandatory injunctions and/or declarations
COUNSEL:	Mr Ferraro for the applicant
SOLICITORS:	RB Lawyers for the applicant Respondents self- represented