Kitching v Phillips

Case [2009] WASC 396


KITCHING -v- PHILLIPS [2009] WASC 396


Pending Appeal


SUPREME COURT OF WESTERN AUSTRALIACitation No:[2009] WASC 396
Case No:CIV:2479/200831 AUGUST 2009
Coram:JENKINS J17/12/09
22Judgment Part:1 of 1
Result: Action dismissed
B
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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
CITATION : KITCHING -v- PHILLIPS [2009] WASC 396 CORAM : JENKINS J HEARD : 31 AUGUST 2009 DELIVERED : 17 DECEMBER 2009 FILE NO/S : CIV 2479 of 2008 BETWEEN : JOHN JAMES KITCHING
    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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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.

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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