Lang & Aor v Kirkness

[1996] HCATrans 16

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S198 of 1994

B e t w e e n -

OTTMAR JOHANN LANG and BRIGITTE LANG

Applicants

and

TIMOTHY JAMES KIRKNESS and CHRISTINE MARY KIRKNESS

Respondents

Application for special leave to appeal

GAUDRON J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 5 FEBRUARY 1996, AT 10.01 AM

Copyright in the High Court of Australia

MR S.C. CHURCHES:   If it please the Court, I appear for the applicants.  (instructed by Rowlandson & Co)

MR T.J. KIRKNESS:   In person, your Honour.

GAUDRON J:   Yes, Mr Churches?

MR CHURCHES:   Your Honours, the issue of public importance at stake in this matter is the principle referred by Justice Kirby in Hemmes Case as the cardinal principle of registered land title that such title, if clear on its face, be indefeasible, and that principle is challenged by the allegation in this matter that an easement which is clearly marked on the title as six metres wide, a right of carriageway, that such easement can be extended ad nauseam, willy-nilly, and in an indefinite way - - -

GUMMOW J:   Ad infinitum, maybe.

MR CHURCHES:   Ad infinitum, yes, thank you, your Honour - can be extended ad infinitum by reference to an unspecified easement of support which is - - -

GAUDRON J:   Well, that is not exactly what happened, is it, Mr Churches?  It was extended, if at all, by the construction of an agreement between the parties.

MR CHURCHES:   Your Honours, we need to address that immediately and if I might tender some papers, there are four copies for the Court, a mispaginated page from the application book, two pages from Bradbrooke and Neave on Easements, and a copy of the New South Wales Court of Appeals decision in Hemmes which I have not put on my list.  If I could submit that to the Court, thank you. 

Your Honours, as to the issue of agreement:  in our submission, the events surrounding the order of Justice Windeyer on 13 September 1993 do not constitute an agreement by the applicants that they would allow this construction to take place on their property.  What occurred on that date, your Honour, was an agreement to find a way forward to a satisfactory engineering solution and the order of the court on 13 September is at the application book, page 73 and there onward, and I note by way of example, your Honours, that the orders of the court which commence at page 76 go on to page 77, under line 20:

The court notes. 

And there is paragraph 8:

The agreement between the parties that -

and it goes on to say:

the Second Plaintiff will carry out -

the second plaintiff being the now respondents -

the works described in Annexure “A” (“the works”) in a proper and workmanlike manner.

In our submission that goes to the concept that the works, once agreed upon, will be then carried out in a proper and workmanlike manner and that, your Honour, we submit, is borne out by the next page at the top, paragraph (b), in which the consulting engineers who are named are to:

draw up plans and specifications necessary for the works to be carried out.

And in that vein, your Honour, I turn to the annexure itself which is the minutes of meeting between the engineers from both sides, and that is at page 80 of the application book and, there, in the first line of the text of those minutes you will see at about line 16, under the heading:

1         Downstream Face

The first words are:

The proposal is to place a concrete bed at the foot of the existing shotcrete -

and it goes on to refer to -

approximately 2-3 metres beyond the present easement boundary -

and the applicants had conceded in the interests of goodwill and finding compromise to “some shotcreting 2 to 3 metres in linear extent from the line of the six metre right of carriageway to be a lip around the exit pipe under the causeway” .  That concrete would have been a total of about maximum nine square metres of shotcrete on their land and they were prepared to accept that.  What has happened, of course, is that there are now 130 square metres of concrete poured on their land, that is the servient tenement, not the dominant tenement.  They in no way agreed to that and, in our submission, any references to agreement are a colouring of the true situation.

GAUDRON J:   The issue before Justice Windeyer, however, was to interpret that agreement.

MR CHURCHES:   The subsequent judgment on the 1 February?

GAUDRON J:   Yes.

MR CHURCHES:   Yes, your Honour.  And that is where, in our submission, your Honours, the New South Wales Supreme Court fell into error because that judgment on 1 February proceeds to justify further extensions of that shotcreting by reference to necessity.  That is at pages 84 and 85 of the application book.  Page 84 at about line 8 refers to tying boulders into the work which:

was necessary for what was described as the veracity of the downstream wall.

This is all said to be for the purpose of erosion control as water in heavy rainfall pours out of the exit pipes.  There are two pipes, but one in particular would carry the body of water.  And then on page 85, at about line 10, his Honour Mr Justice Windeyer said:

because that work was also necessary for what is described, as I have said, of the veracity of the work planned for the downstream face.

GAUDRON J:   Where are you reading from, Mr Churches?

MR CHURCHES:   Sorry, page 85, at line 10 to 12.  Further on page 85, your Honours, at about line 22 to 25, there is further justification by his Honour as to the erosion protection.  He said:

There is no reason why that suitable erosion protection should not form part of the work required to stabilise the downstream face of the wall -

to which, of course, we respond, that the law simply does not provide for this sort of permanent structure to be justified on a servient tenement by reference to an easement of necessity.

GAUDRON J:   Where do you say the justification is by reference to an easement of necessity in that paragraph?

MR CHURCHES:   Only by inference, your Honour.

GAUDRON J:   Why would one make the inference when his Honour said he was construing the contract, when he says he is construing clauses 1 and 3 of the agreement?

MR CHURCHES:   In our submission, your Honours, the agreement referred to two to three metres.  Here, in this judgment of 1 February already there is an authorisation of what is a great deal more than that 2 to 3 metre lip being about 9 square metres, and it is justified in terms of suitable erosion protection.  Now, in our submission, of course, this goes back to the whole issue of necessity that the respondents have, at some stage in these proceedings, offered to build a bridge which would require none of this work on the servient tenement.  There is no necessity to have this causeway to be able to utilise the right of carriageway.  Therefore, we say that the imposition is all the more grotesque in building this volume of concrete on to the servient tenement.

GAUDRON J:   Perhaps you could turn your mind to the question of public importance if one is dealing with a matter of construction only, a matter of construction of the agreement, the parties’ agreement.

MR CHURCHES:   In our submission, your Honours, the final result has no point of reference to what is alleged was an agreement.  We say only an agreement to go forward to agree on final engineering proposals, but, in so far as there appears to be anything that could be called an agreement, it is nothing like the finished product, nothing like at all, so that the reality is so far away from any issue of construction that the issue of public importance then becomes, your Honour, what will happen to a purchaser of either of these lots in terms of the now structure built on to the applicant’s land.  And that is where we say there is a real point of public importance that goes beyond the immediate problem between the two parties in this matter. 

In our submission, particularly by reference to the Court of Appeal’s decision in Hemmes, if the respondents’ submissions are correct, then there is not only no need to register this claimed ancillary right, but could not be registered because there the Court of Appeal said that such ancillary rights as the respondents’ claim are involved and bound up with the registered easement and, therefore, they may not be registered. 

Now, the problem there, of course, is that the ancillary rights referred to by the Court of Appeal in Hemmes Case are ephemeral rights.  They are the rights recognised - and I refer to Bradbrooke and Neave at paragraph 150 - those ancillary rights are the rights to load and unload while standing on the dominant tenement to have access to the servient tenement to be able to effect repairs to the dominant tenement and to be able to extend the easement to another right of way that is necessary for access.  They are the three accepted ancillary rights.

Now, in our submission, of course they do not need to be registered.  They are not that sort of a right.  They are ephemeral.  They are classically the quasi easements referable to head easements.  But here we are not talking about such an ephemeral matter at all.  We are talking about the size of a suburban house, 130 square metres of concrete poured on to a neighbour’s land, on to the servient tenement, and, yet which, on the reasoning in Hemmes Case will not be registered.  A future purchaser may not necessarily have any notice of this whatsoever.  It leaves issues of liability for the “property” up in the air.  In our submission, that is an unsatisfactory position altogether.

I note, by reference to Kebewar’s Case, your Honours, number 6 on our list, a decision by the Court of Appeal of New South Wales, that is authority that such an ancillary right - and there the issue at stake was an ancillary right of support claimed - was said by Justice McHugh in that court speaking for that court, as not to be enforceable against a subsequent owner of the servient tenement which highlights the predicament for future purchasers.  It is not necessary that, in fact, on Hemmes cannot be registered and, furthermore, according to Kebewar, is not enforceable against a future purchaser.  In our submission, your Honours, and with all respect to the courts below, what is being created is a very unfortunate muddle and a most unsatisfactory one. 

GUMMOW J:   But the Court of Appeal was dealing with it in interlocutory appeal, was it not?

MR CHURCHES:   That is true, your Honour.  It has had three trips to the Court of Appeal, but on the 5 December 94, that is correct.  I take you point, Justice Gaudron, that you have referred to the, as it were, defence of agreement.  I would like to think that you accept that the other heads of reference to necessity cannot be supported.

GAUDRON J:   But the only issue that arises is one of the construction of the agreement.  On any view, that is the only issue that would be presented for determination in the event of a grant of special leave to appeal.

MR CHURCHES:   In our submission, your Honour, with all humility, I will have to run against that.  It is alleged, and, indeed, the respondents’ summary is replete with references - every page refers to the agreement and to consent orders, it is alleged, entered into by the applicants.  In our submission, that is simply not the case.  Justice Windeyer never gave or made consent orders.  There was no form signed between the parties as there was before Justice Needham the year before, which is part of the application book.  In the first pages of the application book there is the consent agreed between the parties then embodied in the order of the court.  Justice Windeyer was not giving such orders.  In our submission, he misconstrued the ancillary rights available to the now respondents throughout.  He begins his judgment on the 13 September, in our submission, on completely the wrong foot.  He says:

In this matter the parties have sensibly come to an agreement as to the claim of the plaintiff -

the now respondent -

for what might be described as ancillary rights in respect of the right of carriageway -

and so forth.  Now, the ancillary rights that were discussed in courts below were consistently the rights to be able to go on to the servient tenement to effect repairs.  And there has been a consistent muddling by the respondents of that particular ancillary right with the claimed ancillary right to be able to have support built all over the servient tenement.  So, what has happened, your Honour Justice Gaudron, is a final result which has simply nothing to do with whatever Justice Windeyer thought he was doing on 13 September and, in our submission, that was misconceived.  The final product is one with a very serious potential for disruption to the security of land title.  If the New South Wales Supreme Court were to go on allowing for this sort of easement to extend where does it leave future purchasers for value?  So, in our submission, the references to agreement must be constrained by a realisation that annexure A to the decision of Justice Windeyer on 13 September 1993 is really a preliminary.  It is not intended as a final determination of the rights between the parties. 

GUMMOW J:   That is one of your problems.

MR CHURCHES:   We say that the problem that arises after that, your Honour, is that - - -

GUMMOW J:   The problems on this application.

MR CHURCHES:   Yes, we say, though, that Justice Windeyer then attempted to give force and effect to what he had said on 13 September, did so authorising, purporting to authorise building on much grander scale than the 2 to 3 metres that had been compromised or suggested, we would say, suggested by way of compromise and he authorised a great deal more construction which was not in any way by way of agreement.  This appeal is, principally, your Honours, against the Court of Appeal on 5 December upholding the decision of Justice Windeyer on 1 February.  That is the thrust of it.  We say that that decision of Justice Windeyer’s which - of course, we accept that the Court of Appeal did not explore.  Unfortunately, there is no lengthy examination of the law, but we say that Justice Windeyer at first instance was misconceived in his references to necessity as the basis of justifying the building of this quantity of concrete.

GUMMOW J:   The Court of Appeal was refusing an application for leave, were they not?

MR CHURCHES:   Yes, that is correct.  However, I note, your Honour, that Justice Kirby did make reference in particular to the fact that - I am looking at page 91 of the application book:

it is only just that an opportunity should be had to ventilate the case for leave as, indeed, it has been ventilated. 

But then on to page 92, up towards the top:

I am not convinced that his Honour -

Justice Windeyer -

was wrong.

And we would submit that that is the principal reason that leave was not granted, that the court had taken a view of the correctness of Justice Windeyer’s reasoning.  In our submission, that is because of error built on Hemmes Case, the non-realisation that the ancillary rights referred to in Hemmes Case are very strictly limited, and they are the ancillary rights recognised at common law, not new ancillary rights to build a permanent structure on the servient tenement.  Your Honours, unless you have any further questions that concludes our submissions.

GAUDRON J:   Thank you, Mr Churches.  We need not trouble you, Mr Kirkness.

The applicant seeks special leave to appeal from a decision of the Court of Appeal refusing leave to appeal from a decision of Mr Justice Windeyer as to the meaning and effect of an agreement between the applicant and the respondents with respect to certain works to be carried out in or in relation to a right of way on the applicant’s property.  The application raises neither a point of general principle nor a question of such importance as to attract a grant of special leave.  Special leave is refused.

Do you ask for costs, Mr Kirkness?  You are representing yourself.

MR KIRKNESS:   We have expenses that are more in the way of my not being at work and my wife not being at work today and the expenses of just getting here.

GAUDRON J:   Unfortunately there are decisions that are against you in regard to that but if you wish a general order to costs, whether or not it will have any effect is a matter that will wait ‑ ‑ ‑

MR KIRKNESS:   We would seek to have that, your Honour.

GAUDRON J:   What do you say about that, Mr Churches?

MR CHURCHES:   Your Honours, we put in our summary reasons why we submit that costs should not go against the applicants in these proceedings because, in particular, they have succeeded once in the New South Wales Court of Appeal and then a different stream of litigation engendered by the respondents has resulted in decisions against them, but both substantially on the same issue.  In our submission, that would leave the applicants paying for the unfortunate effect of the way matters have run through the New South Wales Supreme Court.  I note the reference to “procedural barbarity” by Justice Meagher at one stage referring to Justice Brownie effecting a discharge of another single judge’s orders. 

GAUDRON J:   If you could confine yourself to the question of costs.

MR CHURCHES:   But on that basis that there has been confusion which has adversely affected the applicants, we would submit that each party bear their own costs in this matter.

GAUDRON J:   There will be an order for costs, Mr Kirkness.  What effect that has remains to be seen.

AT 10.22 AM THE MATTER CONCLUDED