Lee v Coffee Republic Pty Ltd
[2006] TASSC 84
•24 October 2006
[2006] TASSC 84
CITATION: Lee v Coffee Republic Pty Ltd [2006] TASSC 84
PARTIES: LEE, Elizabeth Anne
v
COFFEE REPUBLIC PTY LTD (ACN 071 592 802)
ERINA DEVELOPMENTS PTY LTD (ACN 009 573 193)
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: Original
FILE NO/S: 66/2005
DELIVERED ON: 24 October 2006
DELIVERED AT: Launceston
HEARING DATE: 19 September 2006
JUDGMENT OF: Slicer J
CATCHWORDS:
Procedure – Supreme Court procedure – Tasmania – Practice under Rules of Court – Pleadings – Striking out.
Supreme Court Rules 2000 (Tas), rr227, 244, 258, 259 and 367.
General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125; Bardenhagen v Tasmanian Board Mills (1994) 4 Tas R 270; Republic of Peru v Peruvian Guano Co [1887] 36 Ch D 489, referred to.
Aust Dig Procedure [272]
Conveyancing – Land titles under Torrens system – Easements – Creation – Endorsements on certificates as evidence – Endorsement on certificate of dominant tenement – Conclusiveness of endorsements.
Land Titles Act 1980 (Tas), ss39, 40, 105 and 106.
Parramore v Duggan (1995) 183 CLR 633, referred to.
Aust Dig Conveyancing [253]
REPRESENTATION:
Counsel:
Appellant/First Defendant: M J McK Grove
Respondent/Plaintiff: R W Pearce
Respondent/Second Defendant: K M McCarthy
Solicitors:
Appellant/First Defendant: Bishops
Respondent/Plaintiff: Douglas & Collins
Respondent/Second Defendant: Archer Bushby
Judgment Number: [2006] TASSC 84
Number of paragraphs: 30
Serial No 84/2006
File No 66/2005
ELIZABETH ANNE LEE v COFFEE REPUBLIC PTY LTD (ACN 071 592 802)
and ERINA DEVELOPMENTS PTY LTD (ACN 009 573 193)
REASONS FOR JUDGMENT SLICER J
24 October 2006
The first defendant seeks review of a decision of the Master refusing to strike out the plaintiff's statement of claim. Issues raised by the review include those of pleadings and summary judgment. The second defendant does not seek to be involved in the review.
The plaintiff/respondent is the registered proprietor of land situate at 137 Charles Street, Launceston, being described in Certificate of Title, Volume 44900, folio 1. The plan, registered number D44900 attached to the title, shows the plaintiff's land to be adjacent to Charles Street and Brisbane Street and on the north-eastern side by a roadway 2.51 metres in width, which is the subject of these proceedings. The search report supplied by the Recorder of Titles in accordance with the Land Titles Act 1980 ("the Act") shows that the land owned by the plaintiff (described as Lot 1) was part of an allotment described in the previous Certificate of Title, Volume 3003, folio 33. Schedule 2 of the title ascertained by search states:
"Reservations and conditions in the Crown Grant, if any
benefiting easement: Right to go return pass and repass over Roadway on Diagram No 44900."
The first defendant is the registered proprietor of the land known as 137 Brisbane Street, described in Certificate of Title, Volume 101326, folio 1. The plaintiff has pleaded that the first defendant, by its servants or agents, entered into possession of the roadway shown on the plan and that those servants or agents are using the land for a coffee shop business. The plaintiff claims that the first defendant's possession and use of the roadway, through its servants or agents, is pursuant to a lease or licence granted by the second defendant.
The statement of claim of the plaintiff relevantly pleads:
"3Mrs Lee's land has the benefit of the right to go, return, pass and re-pass ('the right of way') over the area marked 'Roadway' on Diagram 44900 which is 2.51 metres wide and situated between Mrs Lee's land and the Erina Developments land ('the Roadway').
4The first defendant has, by its servants or agents, entered into possession of the Roadway and is using that land for a coffee shop business.
5The first defendant's possession and use of the Roadway is pursuant to a lease or licence granted by the second defendant.
6The possession and use of the Roadway by the first defendant and the second defendant:
(a) is without permission or authority from the plaintiff; and
(b) constitutes a substantial interruption to and interference with the plaintiff's right of way
7By letter dated 26 July 2005 from the plaintiffs solicitor, Douglas & Collins, to the second defendant, the plaintiff requested the second defendant to cease using the Roadway and to cause the first defendant to cease conducting its business within the Roadway.
8Notwithstanding the plaintiff's request, the defendants continue to use the Roadway and interrupt and interfere with the plaintiff's right of way.
Particulars of Use
The first defendant uses the Roadway to conduct a coffee shop business and the second defendant authorises and encourages it to do so."
The plaintiff claims as remedy:
"An injunction restraining the defendants, whether by themselves or by their servants or agents, from:
(a) occupying the roadway,
(b) interrupting or interfering with the plaintiff's right of way."
On 25 November 2005, the first defendant relevantly pleaded:
"1The first defendant admits the allegations in paragraph 1 of the statement of claim filed in this proceeding by the plaintiff ('the statement of claim').
2The first defendant does not plead to any allegation in paragraph 2 of the statement of claim, it containing no allegation against the first defendant.
3The first defendant denies the allegations in paragraph 3 of the statement of claim and says that there is no right of way as
a there is no servient tenement (such tenement not having been pleaded by the plaintiff), and/or
b the said right of way does not accommodate the dominant tenement, the existence of which is denied, and/or
c the benefit asserted by the plaintiff does not amount to a subject matter that is capable of being granted and/or
d the plaintiff does not plead sufficient material facts that show or establish the proper, adequate or sufficient creation of the alleged right of way.
4In the alternative to paragraph 3 herein, the first defendant says that if there was such a right of way that right of way has been lost by virtue of:
a implied release by way of abandonment by the plaintiff and/or the plaintiff's predecessors in title and/or possession and/or,
b unity of title and possession of the dominant tenement and the servient tenement, if there be such, which is denied and/or,
c abandonment, desuetude or obsolescence viz
iany right of way, the existence of which is denied, only allowed passage with 'horses, carts, wagons and other carriages' and 'to drive cattle and other beasts', such passage not being used as such for a significant time nor claimed by the plaintiff and/or
iithe egress/ingress at the southern end of the alleged right of way, the existence of which is denied, has been permanently, and inconsistently with the continued existence of the alleged right of way, sealed and/or obstructed by a wall of premises located at 139 Charles Street, Launceston in the State of Tasmania.
5Other than not to admit that the area of land is or is called or described as a Roadway, the first defendant admits the allegations in paragraph 4 of the statement of claim.
6The first defendant denies the allegations in paragraph 5 of the statement of claim and says that the first defendant's possession and use of the Roadway (of which the first defendant does not admit is or is called or described as a Roadway) is not pursuant to a lease or a licence granted by the second defendant.
7Further, or in the alternative, to paragraph 6 'herein, the said lease demised to the first defendant only that land being part of the first floor of the premises situated at 137 Brisbane Street, Launceston in the State of Tasmania (described in Certificate of Title Volume 101326 Folio 1).
8In the alternative to paragraph 6 herein, if the first defendant's possession and use of the Roadway (of which the first defendant does not admit is or is called or described as a Roadway) is pursuant to a lease or a licence granted by the second defendant then the second defendant is entitled to grant same.
9The first defendant admits the allegations in paragraph 6(a) of the statement of claim but says that the permission or authority from the plaintiff is not required, the plaintiff having no estate, interest or right in respect of the same and the first defendant repeats paragraphs 3 and 4 herein.
10The first defendant denies the allegations in paragraph 6(b) of the statement of claim and says that the plaintiff does not have such a right of way or at all and the first defendant repeats paragraphs 3 and 4 herein.
11ln the alternative to paragraphs 9 and 10 herein, if there is a right of way, which is denied, then the possession and use of the Roadway (of which the first defendant does not admit is or is called or described as a Roadway) does not constitute a substantial interruption to and/or interference with the plaintiff's right of way, which right of way is denied.
12The first defendant does not plead to any allegation in paragraph 7 of the statement of claim, it containing no allegation against the first defendant and it not being pleaded that the first defendant is the servant or agent of the second defendant or vice versa.
13The first defendant denies the allegations in paragraph 8 of the statement of claim and says that the letter referred to in paragraph 7 of the statement of claim, which the first defendant infers is the request in paragraph 8 of the statement of claim, was not directed to the first defendant.
14Further, or in the alternative, to paragraph 13 herein, the first defendant denies the plaintiff has a right of way over the Roadway (of which the first defendant does not admit is or is called or described as a Roadway) and the first defendant repeats paragraphs 3, 4, 8 to 10 inclusive herein.
15In the alternative to paragraph 13 herein, if the plaintiff does have a right of way, which is denied, the first defendant says that the first defendant is not interrupting nor interfering with such right of way, which right of way is denied, and that at all material times the plaintiff has had and been permitted to have access to the Roadway (of which the first defendant does not admit is or is called or described as a Roadway) for the purposes of going, returning, passing and re-passing thereover.
16The first defendant denies that the plaintiff is entitled to the remedies sought in the statement of claim or at all.
17And the first defendant seeks that this proceeding be dismissed and that the plaintiff pay the first defendant's costs of and incidental to this proceeding, to be taxed in default of agreement."
The second defendant, through its pleading, does not admit the allegations set out in pars3 and 4 of the statement of claim, but admits "that it has no permission or authority from the plaintiff to use the roadway". As can be readily seen, the defence raised a wide range of issues. They were raised prior to the application to "strike out" the statement of claim.
On 2 December 2005, the first defendant applied for orders:
"1That the plaintiff's statement of claim be struck out.
Basis: Pleading does not set out nature and detail of claim to the asserted right of way: Harris v Jenkins (1883) 22 Ch D 481 and thereby does not disclose a cause of action or is, alternatively, embarrassing.
2In the alternative to Order 1 herein, the first defendant file and serve an amended statement of claim within 14 days.
3That the first defendant file and serve any amended defence within 14 days of the filing and service of the amended statement of claim referred to in Order 2 herein.
Basis: First defendant's defence does not yet plead matters relevant to section 84B of the Conveyancing & Law of Property Act 1884 (Tas) and ought do so, so as to have the all '... the real questions in controversy ...' before the Court.
Basis: First defendant's defence does not yet specifically plead any matters going to the plaintiff's plea for equitable relief. Whilst the first defendant does not concede it is required to do so, the first defendant intends doing so, so as to avoid surprise."
Other matters raised by the application are not relevant to this review.
The Master dismissed the application (Lee v Coffee Republic Pty Ltd [2006] TASSC 6), determining:
"The statement of claim does not fail to disclose a cause of action and is not embarrassing. There will be an order dismissing the strike out application."
The first defendant has appealed against that determination on the grounds that:
"1The learned Master erred:
a In finding, in effect, that there is indefeasibility of easements generally within the Land Titles Act 1980 (Tas) [paras 5(a), and 10], when there is no such thing;
b In finding that no collateral attack as to existence of an easement can be made except by a person relying on an indefeasibility provision of the Land Titles Act 1980 (Tas) [para 9(c)], wherein the learned Master misinterpreted the effect and breadth as to the decision in Parramore;
c In finding that the only relevant question to be determined in the proceeding, subject only to some limited questions, is that within sub-section 106(2) of the Land Titles Act 1980 (Tas), where, on the contrary, the relevant question is answered by a consideration (the Land Titles Act 1980 (Tas) not defining 'easement') of the common law principles viz the grant and the content of an easement;
d In finding that the first defendant's argument required an enquiry into the history and derivation of the registered title [para 10] when the first defendant [sic] argument referred to an enquiry into the grant of the easement (and not the registered title of the plaintiff) and its content;
e In finding [para 11] that it is for the defendant to plead that the servient land is registered land and that the burden of the easement is not stated on the folio, given that the plaintiff's assertion before the Master was that the servient land was unregistered land and that the learned Master gave the decision in Parramore a wider operation on the facts than that which was warranted;
f In finding [para 11] that it is for the first defendant to plead and prove matters justifying an attack on the Register in that such contradicted what had previously fallen from the learned Master, and is contrary to the effect of the learned Master's reasons;
g. In failing to find that the Land Titles Act 1980 (Tas) does not establish indefeasibility for easements;
h In failing to find that easements draw their force, enforceability and content from their source be it grant, reservation, presentation or by virtue of section 105 of the Land Titles Act 1980 (Tas), if relevant, which it is not;
i That being so, in failing to find that, in as a matter of pleading, the plaintiff is required to plead the matter set out in paragraph h herein so as to establish a cause of action which is not embarrassing;
j In failing to find section 106 of the Land Titles Act 1980 (Tas) only related to section 105 type easements;
k In failing to find section 106 of the Land Titles Act 1980 (Tas) only referred to the benefit of an easement and did not otherwise create a cause of action for the plaintiff.
l In failing to find that as the plaintiff had only pleaded a benefit of a right to pass etc, the plaintiff had failed to properly or at all plead the necessary requirements of a cause of action in nuisance which depends on establishing a standing to sue and in this instance a right to an easement, or an easement which, at law, could only arise if it is properly created and has a certain content;
m In failing to consider how section 84B of the Conveyancing & Law of Property Act (Tas) 1884 affected the interpretation of section 106 of the Land Titles Act 1980 (Tas) and the enforceability of easements, given that those sections can only be given work to do if easements draw their enforceability from the general law (subject to section 105 of the Land Titles Act 1980 (Tas));
n In failing to find that since the Land Titles Act 1980 (Tas) does not grant either title nor indefeasibility to an easement, enforceability requires a plea then proof of grant and content."
The Master determined the matter on the basis of his interpretation of the Act and the decision of the High Court in Parramore v Duggan (1995) 183 CLR 633, concluding that:
"… that as to the fact of the existence of an easement benefiting registered land all the plaintiff need plead and prove is the content of the folio of the Register for the dominant land naming the plaintiff as registered proprietor and describing an easement appurtenant to that land. Thereafter under s106(2) there might be argument as to whether the right as described in the folio of the Register is a right of a kind which is recognised as an easement at common law, but this is not a matter for pleading or evidence. For the reasons explained in Parramore, a defendant who can plead and then show that the servient land is registered land under the Act and that the burden of the easement is not stated on the folio of the Register for that land will defeat the plaintiff's claim unless the plaintiff by way of reply pleads and then by evidence shows that the easement exists notwithstanding the indefeasibility rule by virtue of the Act, s40(3)(e). Otherwise it is for the defendant by way of counterclaim to plead and prove matters justifying an alteration to the Register."
I would prefer to determine this review by reference to standing and pleadings. However I acknowledge that the first defendant raises a real issue which, in part, depends on the interpretation of the Act and, in particular, the Land Titles Amendment (General Law Easements and Records) Act 1997, an amendment which antedates the decision in Parramore. However, the first defendant's application is not one for summary judgment. It seeks to strike out the statement of claim and require the plaintiff to file and serve an amended statement of claim within a specified period. It does not seek to strike out a particular portion of the pleading, but attacks it as a whole.
There might be differing outcomes, depending on whether the matter determined by the Court is the striking out of the pleading or an application by the opponent seeking the entry of summary judgment.
It would appear to be common ground between the parties that at present all searches of the title have failed to disclose the existence of a servient tenement. Thus, on the first defendant's argument, the plaintiff can never have easement over the land shown on the title as a "roadway". It would seem to be common ground that a search of the title cannot establish whether the roadway was one established by proclamation, acquisition, or the existence of which is dependent upon another private title. It would appear that this is the reason why the first defendant has, understandably, chosen an application based on pleadings rather than that of summary judgment.
In essence, the first defendant's case is that:
(1)The plaintiff is seeking to obtain a remedy wholly dependent on her own title and a description of the existence of an easement stated in that title of land but that such description is no more than a claimed recognition of that existence. It is said that recognition does not afford existence.
(2)The law requires a party claiming such a remedy to show the basis of title in the pleadings themselves.
(3)The statement of claim here does not show such title.
(4)Anticipating that the plaintiff can do better through amendment, it would be open to the second defendant to seek summary judgment, not on the basis of substantive argument, but of failure to properly plead its case.
Within that primary contention lie two other issues, namely:
(1)Whether the evidentiary provisions of the Act, ss39 and 106, permit the plaintiff, at this stage of the proceedings, to maintain the action.
(2)Whether those provisions would satisfy any evidentiary onus on the plaintiff in the case of an application for summary judgment.
The learned Master disposed of the application through consideration and determination of the relevant principles raised by the Act, ss39, 40, 105 and 106 in the light of the decision of the High Court in Parramore (supra). I would prefer to determine the issues as at this stage of the proceedings. There may be differing outcomes, depending on whether the same question is raised:
(1)at this stage of the pleadings;
(2)on an application for summary judgment;
(3)at trial.
At one stage the plaintiff might be able to rely on the Act, ss39 and 106, whilst at trial it might be possible for the defendant to argue that there is not sufficient evidence that the land in question has the benefit of an easement, or at least that it is "indefeasible". (The Act, ss40 and 105.) The argument advanced by the first defendant that the plaintiff ought have recourse to the Conveyancing and Law of Property Act 1884, s84B, is irrelevant to this review. It was likewise open for the second defendant, or the first through the lessor, to do so before execution of the lease or occupation.
The Supreme Court Rules 2000, r227, relevantly provides:
"(1) A pleading is to ¾
(a)be as brief as the nature of the case allows; and
(b)contain only a statement of all the material facts in summary form on which the party relies but not the evidence by which those facts are to be proved.
(2) …
(3) Every pleading is to be expressed so as to give reasonably explicit notice to any other party of all grounds of action or all defences on which the party pleading intends to rely at the trial.
(4) A pleading need not allege any matter of fact which the law presumes in favour of the party pleading or as to which the burden of proof lies on the other side unless the matter has first been specifically denied."
Rule 258 permits the Court to strike out in an endorsement or pleading that may be unnecessary, scandalous or prejudice or delay trial. Rule 259 provides:
"259 If a pleading does not disclose a reasonable cause of action or answer or shows that the cause of action or defence is frivolous or vexatious, the Court or a judge may order ¾
(a)that the action be stayed or dismissed or the pleading be struck out; and
(b)that judgment be entered accordingly."
Here the first defendant had not sought an order for judgment. Nor had it applied for summary judgment in accordance with r367 which provides such a remedy where the Court is satisfied that:
"(1) Within 10 days after appearing, a defendant to an action may apply to a judge for summary judgment.
(2) … ¾
(a)the action is frivolous or vexatious; or
(b)the defendant has a good defence on the merits; or
(c)the action should be disposed of summarily or without pleadings."
The tests for summary judgment by way of rr259 and 367 differ. All that a plaintiff must show, to withstand a "striking out judgment", is the existence of a "reasonable cause of action". Here that is what she had done in pleading the existence of an easement affording her both standing and entitlement to remedy. She was not required to anticipate a defence in advance (Hall v Eave [1876] 4 Ch D 341). She was not required to plead, as a point of law, the effect of the Act, ss39 and 106.
Here the plaintiff has standing. She claims, at least, that the first defendant is "interrupting or interfering with" her "right of way". (See generally Bradbrook and Neave, Easements and Restrictive Covenants in Australia, 2 edn at 18.12.) She might at trial be able to show some presumptive right affording remedy. Here she is entitled to rely on the Act, ss39 and 106.
The first defendant relies on the following proposition stated in Bullen and Leake and Jacob's Precedents of Pleadings, 13 edn at 342, which states:
"Pleading. In actions for obstructing private rights of way, the mode in which the plaintiff claims to make out his title to the way, whether by grant, prescription or otherwise, should be shown in the statement of claim (see Harris v Jenkins (1883) 22 Ch D 481, distinguished in Pledge v Pomfret (1905) 74 LJ Ch 357 at 359), a lost grant may be pleaded without stating date or parties (Palmers v Guadagni [1906] 2 Ch 494; see, however, Tremayne v English Clays, Lovering Pochin & Co Ltd [1972] 1 WLR 657). The termini, and the kind of way, whether a footway or carriageway, etc should be clearly stated, if necessary by a map or plan annexed to the pleading, and also the qualification of the right if it is qualified, as for instance, a right for particular times of the year, or for particular purposes (Harris v Jenkins, supra); where specific acts of dedication are relied upon they should be set forth with the names of the persons by whom they were done (Spedding vFitzpatrick (1889) 38 Ch D 410). It is, moreover, possible for a cul-de-sac to be dedicated as a highway (Att-Gen v Seweil (1919) 88 LJKB 425)."
The draft pleading suggested that it include:
"1 The plaintiff was at all material times, and is the owner [or lessee under a lease from E F dated ¾, 19 ¾ ] and occupier [or was and is possessed] of a messuage known as ¾, at ¾, and was and is entitled to a right of way from the said messuage over a field called ¾ to a public highway called the ¾ Road, and back again from the said highway over the said field to the said messuage, for himself and his servants, on foot [and with horses, vehicles, and cattle], at all times of the year. [Describe the way claimed so as to show its position and termini. It is often convenient to incorporate in the statement of claim, or to refer to, a plan or map.]"
The challenge here that an assumed absence (even if proven) of a servient tenement prevents the plaintiff from claiming the existence of an easement (based on a dominant tenement recorded on her title) is not that based on "the reasonable cause of action" test. (See generally Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937; Bardenhagen v Tasmanian Board Mills (1994) 4 Tas R 270.) The procedure is intended to apply in "plain and obvious cases" (Hubuick & Sons Ltd v Wilkinson [1899] 1 QB 86) "unarguable" (Nagle v Feilden [1966] 2 QB 633) or "unsustainable" (Attorney-General of the Duchy of Lancaster v London and North Western Railway Co [1892] 3 Ch D 274). In the words of Chitty J in Republic of Peru v Peruvian Guano Co [1887] 36 Ch D 489 at 496, it must be "… demurrable and something worse than demurrable".
The Act, s39, provides:
"39 ¾ (1) A folio of the Register is evidence of the particulars recorded in the folio.
(2) Except as otherwise provided in this Act, a folio of the Register is conclusive evidence that ¾
(a)the person named in the folio as registered proprietor of or as taking an estate or interest in the land described in the folio is entitled to that land for that estate or interest."
The question of indefeasibility raised by the Act, s40, and the decision of the High Court in Parramore, are matters of substance.
The Act, s106, provides:
"106 ¾ (1) Subject to subsection (2), a statement in a folio of the Register to the effect that the land comprised in the folio has the benefit of an easement shall be conclusive evidence that the land has that benefit.
(2) Subsection (1) shall not be construed so as to give effect as an easement to a right which is not recognized as an easement at common law.
(3) An easement shall not be implied from anything appearing on a plan deposited with the Recorder after the proclaimed date."
The question of an amendment made by Parliament subsequent to a decision of the High Court (Parramore) specifically dealing with the same question, is one of interpretation and susceptible to argument. (Wall v Bank of Victoria Ltd (1890) 16 VLR 2.) Those issues are raised in more detail in the defence. They may be susceptible to resolution on a summary judgment application. But for the plaintiff's action to be terminated (even if by way of r259 rather than r367) it must, even if requiring extensive argument, be untenable (General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125). There is nothing approaching the untenable in the statement of claim, par3, unless and until the reading of the defence. If on that pleading the first defendant could show "inevitable outcome", then it is entitled to apply for summary judgment in accordance with r367.
The argument of the first defendant overlooked, until raised by the Court during argument, the effect of r244, which states:
"244 Plea of title unnecessary
(1) A defendant in an action for the recovery of land who is in possession of the land personally or by tenant is not required to plead title unless –
(a)the defence depends on an equitable estate or right; or
(b)the defendant claims relief on any equitable ground against any right or title asserted by the plaintiff.
(2) It is a defence for the defendant to state that he or she is in possession of the land.
(3) A statement that the defendant is in possession of the land is a denial of the allegation of fact contained in the statement of claim."
It would be anomalous if a plaintiff pleading "title" in reliance on the Act is required to adhere to a 19th century practical requirement of showing the basis of title whereas in the 21st century a defendant is not. The plaintiff in this case is entitled to rely on a legislative enactment which provides for a system of title by registration (Breskvar v Wall (1971) 126 CLR 376). She is entitled to rely on evidence comprised in her title (s39) and its effect as stated in the Schedule (s106) even if not the plan (s106(3)). It is not for her to anticipate a possible challenge to her "right" through the claimed effect or import of the same enactment (ss40 and 140).
The decision of the Master is affirmed and the application dismissed.
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