Kitching v Phillips

Case [2011] WASCA 19

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   KITCHING -v- PHILLIPS [2011] WASCA 19

CORAM:   PULLIN JA

NEWNES JA
MURPHY JA

HEARD:   1 NOVEMBER 2010

DELIVERED          :   28 JANUARY 2011

FILE NO/S:   CACV 156 of 2009

BETWEEN:   JOHN JAMES KITCHING

First Appellant

PAULINE KITCHING
Second Appellant

AND

KELVIN KEITH PHILLIPS
SHARON NELLIE PHILLIPS
First Respondents

LIONEL ALFRED GEORGE HODGSON
EVELYN JUNE HODGSON
Second Respondents

ON APPEAL FROM:

Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA

Coram  :JENKINS J

Citation  :KITCHING -v- PHILLIPS [2009] WASC 396

File No  :CIV 2479 of 2008

Catchwords:

Easements - Implied easements - Equitable easements - Non­derogation from grant - Implied terms - Estoppel - Torrens title

Legislation:

Property Law Act 1969 (WA), s 33
Trade Practices Act 1974 (Cth), s 52
Transfer of Land Act 1893 (WA), s 68

Result:

Appeal dismissed

Category:    A

Representation:

Counsel:

First Appellant               :     Mr J R Ludlow

Second Appellant          :     Mr J R Ludlow

First Respondents         :     Mr M J Hawkins

Second Respondents     :     Mr M J Hawkins

Solicitors:

First Appellant               :     In person

Second Appellant          :     In person

First Respondents         :     Peel Legal

Second Respondents     :     Julienne Penny & Associates

Case(s) referred to in judgment(s):

Ansett Transport Industries (Operations) Pty Ltd v The Commonwealth of Australia (1977) 139 CLR 54, 71

Auerbach v Beck (1985) 6 NSWLR 424

Barclays Bank Plc v Boulter (1999) 1 WLR 1919

Barry v Heider (1914) 19 CLR 197

Birmingham, Dudley and District Banking Co v Ross (1877) 38 Ch D 295

Bishop v Taylor (1968) 118 CLR 518

BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266

Breen v Williams (1996) 186 CLR 71

Browne v Flower [1911] 1 Ch 219

Byrne v Australian Airlines Ltd (1995) 185 CLR 410

Cable v Bryant [1908] 1 Ch 259

Clos Farming Estates Pty Ltd v Easton [2002] NSWCA 389

Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337

Crabb v Arun District Council [1976] 1 Ch 179

Dabbs v Seaman (1925) 36 CLR 538

Delohery v Permanent Trustee Co of NSW (1904) 1 CLR 283

Esanda Ltd v Burgess (1984) 2 NSWLR 139

Gallagher v Rainbow (1994) 179 CLR 624

Gates v City Mutual Life Assurance Society Ltd (1986) 160 CLR 1

Gemmell Power Farming Co Ltd v Nies (1935) 35 SR (NSW) 469

Hawkins v Clayton (1988) 164 CLR 539

Heimann v Commonwealth of Australia (1938) 38 SR (NSW) 691

Helicopter Sales Pty Ltd v Rotor Work Pty Ltd (1974) 132 CLR 1

Horsfall v Braye (1908) 7 CLR 629

Hoyt's Pty Ltd v Spencer (1919) 27 CLR 133

JLCS Pty Ltd v Loft City Steakhouse Pty Ltd [2008] FCA 867

Keberwar Pty Ltd v Harkin (1987) 9 NSWLR 738

Khoury v Government Insurance Office of NSW [1984] HCA 55; (1984) 165 CLR 622

Kitching v Phillips [2009] WASC 396

Lace v Chantler [1944] 1 KB 368

Lyttelton Times…

Continue reading Kitching v Phillips

Sign in free to access the full text

Details
AGLC
Kitching v Phillips [2011] WASCA 19
Case
[2011] WASCA 19
Decision Date

CaseChat Overview and Summary

The case of Kitching v Phillips involved a dispute between the plaintiffs, Mr and Mrs Kitching, and the defendants, Mr and Mrs Phillips, concerning the rights to a driveway over the defendants' land. The plaintiffs sought to establish an easement over the driveway as a matter of necessity and implied reservation, arguing that the driveway was necessary for access to their property. The case was heard in the Supreme Court of New South Wales, with the primary judge's decision being appealed. The central legal issue in this appeal was whether the plaintiffs were entitled to an easement over the driveway as a matter of necessity and implied reservation, and if such an easement could be implied in the context of a Torrens title system.

The court considered the principles of easements, particularly focusing on the doctrine of easements of necessity and the maxim of non-derogation from grant. It was established that an easement may be implied where it is necessary to give effect to the common intention of the parties, and where it is necessary for the enjoyment of some other right expressly granted. The court held that extrinsic evidence concerning the circumstances known at the time of the original grant was not admissible in construing the grant of an easement under the Torrens system. The court further examined whether the maxim of non-derogation from grant could operate to imply the grant, or reservation, of an easement. The court found that the maxim could operate to imply rights that are proprietary in nature, even if they are not strictly characterised as easements.

Ultimately, the court determined that the plaintiffs were not entitled to an easement over the driveway as a matter of necessity or implied reservation. The court found that the maxim of non-derogation from grant did not apply in this context, as the parties had not contemplated that the land retained by the defendants would not be used in a manner inconsistent with the plaintiffs' rights. The appeal was dismissed, and the decision of the primary judge was upheld.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

An easement may also be 'reserved' in favour of a grantor of land under the doctrine of easements of necessity (as to which see North Sydney Printing Pty Ltd v Sabemo Investment Corporation Pty Ltd (1971) 2 NSWLR 150; Nickerson v Barraclough [1981] 1 Ch 426), and where, in respect of the grant or alienation of real property, it is necessary to give effect to the common intention of the parties (see [53] ‑ [58] below). In relation to the express grant of an easement under the general law by deed, the general principle is that the instrument should be construed according to its natural and ordinary meaning, read in the light of the circumstances existing and known to the parties at the time of its creation and, in the absence of a contrary indication, it is construed against the grantor of the easement: Gallagher v Rainbow (639 ‑ 640). An implied term for the grant of an easement may also be ascertained as part of the process of the proper construction of a demise or conveyance, including by reference to admissible extrinsic circumstances: Wilcox v Richardson (1997) 43 NSWLR 4, 13. An easement may thus be implied as a matter of proper construction, because it is necessary for the enjoyment of some other right expressly granted in the instrument (eg, the express right to draw water from a spring implies the right to go to the spring for that purpose): Pwllbach Colliery Co Ltd v Woodman [1915] AC 634, 646 (see also [53] ‑ [58] below). Extrinsic material concerning facts and circumstances known at the time of the original grant are not, however, admissible in construing the grant of an easement under the Torrens system (see [61] below). Relevantly, in relation to the arguments raised by counsel for Mr and Mrs Kitching in this appeal, the law may also imply the grant, or (less commonly as grants are usually read contra proferentem) the reservation, of an easement, having regard to the maxim of non‑derogation from grant. The principle is stated in Birmingham, Dudley and District Banking Co v Ross (1877) 38 Ch D 295, where Bowen LJ said (313):[A] grantor having given a thing with one hand is not to take away the means of enjoying it with the other. Higgins J in Nelson v Walker (1910) 10 CLR 560, 592 referred with approval to the passage in Bowen LJ in Birmingham v Ross cited above. See also Secure Parking (WA) Pty Ltd v Wilson [2008] WASCA 350 [93] ‑ [97]; (2008) 38 WAR 350, 375 ‑ 376. The principle is one of general application in the construction of conveyances and demises: Megarry & Wade, The Law of Real Property (5th ed 858); Nordern v Blueport Enterprises Pty Ltd (1996) 3 NZLR 450, 454. The maxim may thus operate by which rights are implied which are proprietary in nature, even though they may not be strictly characterised as easements according to the law of easements: Browne v Flower[1911] 1 Ch 219, 225 ‑ 226; Ward v Kirkland [1967] 1 Ch 194, 226; Megarry & Wade, 849. The maxim of non‑derogation was expressed by McHugh JA (Samuels & Priestley JJA agreeing) in Keberwar Pty Ltd v Harkin (1987) 9 NSWLR 738, 741 (572):If the sale of land is made for a particular purpose, the vendor isunder an obligation not to render the land sold unfit or materially less fit for that purpose: Browne v Flower [1911] 1 Ch 219 at 225‑226 and Nelson v Walker (at 582). If a vendor sells part of his land, knowing that the purchaser intends to erect a building upon that land, the vendor impliedly undertakes not to use his adjoining land so as to injure or interfere with the building: Siddons v Short, Harley & Co (1877) 2 CPD 572 at 577. However, a right in the purchaser is only implied if, having regard to the circumstances, the parties must be taken to have contemplated that the land retained by the vendor would not be used by him in a manner inconsistent with that right: Nelson v Walker . Whilst McHugh JA was referring, in the context of the case before him, to a grant by sale, the maxim applies equally to a demise: see, eg, Nordern v Blueport.