KITCHING -v- PHILLIPS [2009] WASC 396
Pending Appeal
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2009] WASC 396 | |
| Case No: | CIV:2479/2008 | 31 AUGUST 2009 | |
| Coram: | JENKINS J | 17/12/09 | |
| 22 | Judgment Part: | 1 of 1 | |
| Result: | Action dismissed | ||
| B | |||
| PDF Version |
| Parties: | JOHN JAMES KITCHING PAULINE KITCHING KELVIN KEITH PHILLIPS SHARON NELLIE PHILLIPS LIONEL ALFRED GEORGE HODGSON EVELYN JUNE HODGSON |
Catchwords: | Conveyancing Land titles under Torrens System Easements Alleged easement for training and exercising dogs Implied easement Express easement |
Legislation: | Property Law Act 1969 (WA), s 33, s 34, s 41(1) Transfer of Land Act 1893 (WA), s 68 |
Case References: | Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 Cory v Davies [1923] 2 Ch 95 Crabb v Arun District Council [1976] Ch 179 Hill v AWJ Moore & Co Pty Ltd (1990) 5 BPR 11,359 Jones v Sutherland Shire Council [1979] 2 NSWLR 206 McBride v Sandland (1918) 25 CLR 69 McDonald v Peddle (1923) 42 NZLR 987 Muschinski v Dodds (1986) 160 CLR 583 Owners of East Fremantle Shopping Centre West Strata Plan 8618 v Action Supermarkets Pty Ltd (2008) 37 WAR 498 Powell v Whyte [1968] Qd R 255 Pwllbach Colliery Co Ltd v Woodman [1915] AC 634 Walton Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 Walton v The Queen (1989) 166 CLR 283 Wheeldon v Burrows (1879) 48 LJ Ch 853 Wilcox v Richardson (1997) 43 NSWLR 4 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- PAULINE KITCHING
Plaintiffs
AND
KELVIN KEITH PHILLIPS
SHARON NELLIE PHILLIPS
First Defendants
LIONEL ALFRED GEORGE HODGSON
EVELYN JUNE HODGSON
Second Defendants
Catchwords:
Conveyancing - Land titles under Torrens System - Easements - Alleged easement for training and exercising dogs - Implied easement - Express easement
Legislation:
Property Law Act 1969 (WA), s 33, s 34, s 41(1)
Transfer of Land Act 1893 (WA), s 68
(Page 2)
Result:
Action dismissed
Category: B
Representation:
Counsel:
Plaintiffs : Mr J R Ludlow
First Defendants : Mr M J Hawkins
Second Defendants : Mr N W Marsh
Solicitors:
Plaintiffs : Cornerstone Legal
First Defendants : Peel Legal
Second Defendants : Julienne Penny & Associates
Case(s) referred to in judgment(s):
Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337
Cory v Davies [1923] 2 Ch 95
Crabb v Arun District Council [1976] Ch 179
Hill v AWJ Moore & Co Pty Ltd (1990) 5 BPR 11,359
Jones v Sutherland Shire Council [1979] 2 NSWLR 206
McBride v Sandland (1918) 25 CLR 69
McDonald v Peddle (1923) 42 NZLR 987
Muschinski v Dodds (1986) 160 CLR 583
Owners of East Fremantle Shopping Centre West Strata Plan 8618 v Action Supermarkets Pty Ltd (2008) 37 WAR 498
Powell v Whyte [1968] Qd…
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Details
- AGLC
- Kitching v Phillips [2009] WASC 396
- Case
- [2009] WASC 396
- Decision Date
CaseChat Overview and Summary
The case of Kitching v Phillips involved a dispute over an alleged easement for training and exercising dogs across a neighbour’s property. The plaintiff, Mr. Kitching, sought to enforce an easement he claimed existed by implication over his neighbour’s land, owned by Mr. Phillips. The matter was heard and determined by the court, which had to consider whether the claimed easement was legally enforceable.
The court was tasked with determining whether the easement in question was established by implication or if it was an express easement. The plaintiff argued that an implied easement existed by necessity or prescription, while the defendant contended that no such easement was ever agreed upon or recognised. The court had to examine the historical use of the land, the nature of the claimed easement, and whether any statutory or common law principles supported the plaintiff's claims.
In reaching its decision, the court analysed the evidence presented regarding the historical use of the land and the nature of the claimed easement. It found that there was no evidence to support the existence of an implied easement by necessity or prescription. Additionally, the court concluded that there was no express grant or reservation of the easement in any of the relevant property documents. As a result, the plaintiff's claims were dismissed, and the action was ultimately dismissed.
The court was tasked with determining whether the easement in question was established by implication or if it was an express easement. The plaintiff argued that an implied easement existed by necessity or prescription, while the defendant contended that no such easement was ever agreed upon or recognised. The court had to examine the historical use of the land, the nature of the claimed easement, and whether any statutory or common law principles supported the plaintiff's claims.
In reaching its decision, the court analysed the evidence presented regarding the historical use of the land and the nature of the claimed easement. It found that there was no evidence to support the existence of an implied easement by necessity or prescription. Additionally, the court concluded that there was no express grant or reservation of the easement in any of the relevant property documents. As a result, the plaintiff's claims were dismissed, and the action was ultimately dismissed.
Orders
Orders of the court
Action 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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