Maddi Developments Pty Ltd v Perpetual Trustees WA Ltd as the executor of the will of Kathleen Mary Kenny
[2019] WASC 253
•12 JULY 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: MADDI DEVELOPMENTS PTY LTD -v- PERPETUAL TRUSTEES WA LTD as the executor of the will of KATHLEEN MARY KENNY [2019] WASC 253
CORAM: SMITH J
HEARD: 9 JULY 2019
DELIVERED : 10 JULY 2019
PUBLISHED : 12 JULY 2019
FILE NO/S: CIV 1324 of 2019
BETWEEN: MADDI DEVELOPMENTS PTY LTD
Plaintiff
AND
PERPETUAL TRUSTEES WA LTD as the executor of the will of KATHLEEN MARY KENNY
DELPHINE ROSE ANDERSON as executrix of the will of HUBERT STANLEY WYBORN PARKER
First Defendants
MARY JOSEPHIN DINNEEN
Second Defendant
JESSE JOHN BELL
ROBERT SEATON BELL
BEATA LISOWSKA-BELL
Third Defendants
BELINDA LOUISE HUTTON
BENJAMIN THOMAS HUTTON
Fourth Defendants
JOHN TEASDALE SUPERANNUATION PTY LTD
Fifth Defendant
GEORGE ARTHUR CHRISTOS
Sixth Defendant
IVOR ALAN KNIGHT
Seventh Defendant
Catchwords:
Declaration - Existence of easement of right-of-way - Prescription - Whether easement arises by prescription under lost modern grant and/or Prescription Act 1832 (UK) - Establishment of continuous 20-year period
Legislation:
Prescription Act 1832 (UK)
Result:
Declaration made
Category: B
Representation:
Counsel:
| Plaintiff | : | Mr L C A Palmos |
| First Defendants | : | No appearance |
| Second Defendant | : | No appearance |
| Third Defendants | : | No appearance |
| Fourth Defendants | : | No appearance |
| Fifth Defendant | : | No appearance |
| Sixth Defendant | : | No appearance |
| Seventh Defendant | : | No appearance |
Solicitors:
| Plaintiff | : | Palmos Legal |
| First Defendants | : | No appearance |
| Second Defendant | : | No appearance |
| Third Defendants | : | No appearance |
| Fourth Defendants | : | No appearance |
| Fifth Defendant | : | No appearance |
| Sixth Defendant | : | No appearance |
| Seventh Defendant | : | No appearance |
Case(s) referred to in decision(s):
Auckran v Pakuranga Hunt Club (1905) 24 NZLR 235
Gangemi v Watson (1994) 11 WAR 505
Gangemi v Watson (Unreported, WASC, Library No 930473, 1 September 1993)
Maio v City of Stirling [No 2] [2016] WASCA 45
Pekel v Humich [1999] WASC 65
Sunshine Retail Investments Pty Ltd v Wulff [1999] VSC 415
Union Lighterage Co v London Graving Dock Co [1902] 2 Ch 557
SMITH J:
The action and the result
The plaintiff in this action is a company that owns a residential property located in Bassendean, Western Australia.
In these proceedings, the plaintiff seeks a declaration from the court that it has a right‑of‑way over an adjacent laneway at the rear of the property.
The title to the property does not have a registered easement of right‑of‑way. On this ground, the Town of Bassendean has refused to allow the plaintiff to build a carport at the rear of the property for access to and from the laneway.
The plaintiff's claim is based in Prescription Act 1832 (UK) and the doctrine of lost modern grant.
None of the defendants entered an appearance or otherwise appeared in the proceedings to oppose the plaintiff's claim.
At the conclusion of the trial of this action on 9 July 2019, I found the plaintiff's claim had been made out and made the following declaration:
[T]he plaintiff is entitled to an easement of right of way appurtenant to the Property (being lot 194 on Deposited Plan 2572, Certificate of Title Volume 1511, Folio 95) over such part of the Laneway (being Lot 100 on deposited plan 54415, Certificate of Title Volume Number 2647, Folio 74) and has the right to have said easement registered over the certificate of title to the Property and the certificate of title to the Laneway.
These reasons set out why I made the declaration.
The parties to the proceedings
The plaintiff is the registered proprietor of the parcel of land and dwelling at 14 Kenny Street, Bassendean, more particularly described as Lot 194 on Deposited Plan 2572, Certificate of Title Volume 2647 Folio 74 (14 Kenny Street).
The first‑named first defendant is and has been since 13 April 1915:
(a)the executor of the estate of the late Mr Daniel Kenny; and
(b)the registered proprietor (as co‑owner with the second named‑first defendant as tenants in common) of a parcel of land more particularly described as Lot 100 on Deposited Plan 54415, being the laneway adjacent to the rear of 14 Kenny Street (the laneway land).
The second‑named first defendant is, and has been since 28 June 1990:
(a)the executor of the estate of the late Mr Stephen Henry Parker; and
(b)the registered proprietor (as co‑owner with the first‑named first defendant as tenants in common) of the laneway land that is adjacent to 14 Kenny Street.
The remaining defendants (second to seventh defendants) are the registered proprietors of certain parcels of land and dwellings that are appurtenant to the laneway land, and at all material times have enjoyed and continue to enjoy a right‑of‑carriageway over the laneway land.
14 Kenny Street was conveyed to the plaintiff, on 11 June 2019, by the immediate predecessor in title, Ms Julie Smith.
The plaintiff's pleaded case
The plaintiff claims that:[1]
(a)since at least 1990, the plaintiff and the previous registered proprietors of 14 Kenny Street have enjoyed, to the knowledge or constructive knowledge of the first defendants, free, uninterrupted and unrestricted use of the road over the laneway land for the purposes of access to 14 Kenny Street by foot, motor vehicle or any other form of conveyance;
(b)the use by the plaintiff, and predecessors in title, of the laneway land for access to 14 Kenny Street was neither by stealth or force or permission of the first defendants;
(c)the plaintiff is entitled to free, uninterrupted and unrestricted use of the road over the laneway land for the purposes of access to 14 Kenny Street by foot, motor vehicle or any other form of conveyance as an easement of right‑of‑way; and
(d)alternatively, it was a presumed intention of the first defendants that the registered proprietor(s) of the plaintiff's property at 14 Kenny Street and his or her successors in title, including the plaintiff, have free, uninterrupted and unrestricted use of the road over the laneway land for the purposes of access to the property by foot, motor vehicle or any other form of conveyance as an easement of right‑of‑way.
[1] Statement of claim, filed 22 February 2019 [6] – [9].
The plaintiff seeks a declaration that the plaintiff is entitled to an easement of right‑of‑way appurtenant to 14 Kenny Street (being Lot 194 on Deposited Plan 2572, Certificate of Title Volume 2647 Folio 74) over such part of the laneway land (being Lot 100 on Deposited Plan 54415) and has the right to have said easement registered over the certificate of title to 14 Kenny Street and the certificate of title to the laneway land.
Legal principles – Doctrine of lost modern grant and Prescription Act 1832 (UK)
In Gangemi v Watson, Owen J relevantly found:[2]
The Prescription Act 1832 (UK) was expressly adopted by the statute 6 Will IV No 4 (1836) (WA). It continues to apply in this State. It applies to land under the Torrens System: see Di Masi v Piromalli (1980) WAR 57 per Jones J at 59-60.
The effect of s 2 and s 4 is that a claim to an easement can be established by proof of uninterrupted user for a period of 20 years.
[2] Gangemi v Watson (Unreported, WASC, Library No 930473, 1 September 1993) 31; overturned on appeal but not in respect of relevant principles of law: Gangemi v Watson (1994) 11 WAR 505.
More recently, in Maio v City of Stirling [No 2], the Court of Appeal summarised the principles that apply to the doctrine of lost modern grant and the Prescription Act 1832 (UK) as follows:[3]
[3] Maio v City of Stirling [No 2] [2016] WASCA 45 [72] – [78] (Murphy J, Martin CJ & Buss J agreeing).
The judge observed, without challenge in this appeal, that easements may be acquired by prescription under the doctrine of lost modern grant or the Prescription Act 1832 (UK) which was adopted in this State in 1836 by 6 Will IV No 4. The doctrine of lost modern grant was not affected or repealed by the Prescription Act, which did little more than restate the doctrine in statutory form. His Honour added that, for present purposes, it did not matter whether the easements were created under the doctrine of lost modern grant or the Prescription Act because differences between the two were immaterial on the facts of this case and that both doctrines require proof of 20 years continuous user as of right.
Prescription was introduced into the law for the public benefit so that rights of property 'might not be for ever uncertain': Delohery v Permanent Trustee Co of New South Wales. In general terms, prescription is founded on the premise that where a court finds an open and uninterrupted use of A's property by B for a long period unexplained, the court will, if reasonably possible, find a lawful origin for the use in question: Attorney General v Simpson; Delohery; Bakewell Management Ltd v Brandwood. In other words, in these circumstances, the law will 'clothe the fact with right': Moody v Steggles.
The use must be 'as of right': R v Oxfordshire County Council, Ex parte Sunningwell Parish Council; Piromalli v Di Masi. In order to be 'as of right', the use must be inconsistent with any other reasonable inference, as if the use is equally consistent with two reasonable inferences, user 'as of right' is not established: Gardner v Hodgson's Kingston Brewery Co Ltd; Patel v W H Smith (Eziot) Ltd.
In R (Barkas) v North Yorkshire County Council, Lord Neuberger (with whom four other members of the court agreed) said:
The origin of the expression 'as of right' … effectively for present purposes … was authoritatively discussed by Lord Hoffmann in R v Oxfordshire County Council, Ex p Sunningwell Parish Council [2000] 1 AC 335 … As he said, it originates from the law relating to the acquisition of easements by prescription. Before examining what Lord Hoffmann said, it is, I think, helpful to explain that the legal meaning of the expression 'as of right' is, somewhat counterintuitively, almost the converse of 'of right' or 'by right'. Thus, if a person uses privately owned land 'of right' or 'by right', the use will have been permitted by the landowner - hence the use is rightful. However, if the use of such land is 'as of right', it is without the permission of the landowner, and therefore is not 'of right' or 'by right', but is actually carried on as if it were by right - hence 'as of right'. The significance of the little word 'as' is therefore crucial, and renders the expression 'as of right' effectively the antithesis of 'of right' or 'by right'.
In his discussion on the point in Ex p Sunningwell, Lord Hoffmann began by explaining that 'Any legal system must have rules of prescription which prevent the disturbance of long-established de facto enjoyment' (p 349), and went on to explain that a combination of statutory and common law had resulted in such enjoyment having to be 20 years 'nec vi, nec clam, nec precario: not by force, nor stealth, nor the licence of the owner': p 350. He went on to explain that each of 'these three vitiating circumstances' would amount to 'a reason why it would not have been reasonable to expect the owner to resist the exercise of the right', namely, 'in the first case, because rights should not be acquired by the use of force, in the second, because the owner would not have known of the user and in the third, because he had consented to the user, but for a limited period': p 351. For the avoidance of doubt, I should interpose that the reference to 'a limited period' clearly includes an indefinite period (as would arise under an unlimited but revocable permission), and that the word 'limited' was meant to be contrasted with 'permanent'. Lord Hoffmann ended his discussion by citing with approval Lord Lindley's statement in Gardner v Hodgson's Kingston Brewery Co Ltd [1903] AC 229, 239 that 'the words "as of right" were intended "to have the same meaning as the older expression nec vi, nec clam, nec precario"', a view also expressed by Lord Davey at p 238.
…
In Sunningwell [2000] 1 AC 335 … Lord Hoffmann indicated that whether user was 'as of right' should be judged by 'how the matter would have appeared to the owner of the land', a question which must, I should add, be assessed objectively. (emphasis added)
His Lordship, in the same case, also quoted Gale on Easements to the effect that 'acquiescence is the foundation of prescription' and referred to the observations of Fry J in Dalton v Henry Angus & Co.
In Dalton, Fry J said:
The Courts and the Judges have had recourse to various expedients for quieting the possession of persons in the exercise of rights which have not been resisted by the persons against whom they are exercised, but in all cases it appears to me that acquiescence and nothing else is the principle upon which these expedients rest. It becomes then of the highest importance to consider of what ingredients acquiescence consists. In many cases, as, for instance, in the case of that acquiescence which creates a right of way, it will be found to involve, 1st, the doing of some act by one man upon the land of another; 2ndly, the absence of right to do that act in the person doing it; 3rdly, the knowledge of the person affected by it that the act is done; 4thly, the power of the person affected by the act to prevent such act either by act on his part or by action in the Courts; and lastly, the abstinence by him from any such interference for such a length of time as renders it reasonable for the Courts to say that he shall not afterwards interfere to stop the act being done … but I cannot imagine any case of acquiescence in which there is not shewn to be in the servient owner; 1, a knowledge of the acts done; 2, a power in him to stop the acts or to sue in respect of them; and 3, an abstinence on his part from the exercise of such power. That such is the nature of acquiescence and that such is the ground upon which presumptions or inferences of grant or covenant may be made appears to me to be plain, both from reason, from maxim, and from the cases.
As regards the reason of the case, it is plain good sense to hold that a man who can stop an asserted right, or a continued user, and does not do so for a long time, may be told that he has lost his right by his delay and his negligence, and every presumption should therefore be made to quiet a possession thus acquired and enjoyed by the tacit consent of the sufferer. But there is no sense in binding a man by an enjoyment he cannot prevent, or quieting a possession which he could never disturb. (emphasis added)
Fry J in Dalton also referred to the observations of Thesiger LJ in Sturges v Bridgman, where his Lordship said, in delivering the judgment of the Court of Appeal:
Consent or acquiescence of the owner of the servient tenement lies at the root of prescription, and of the fiction of a lost grant, and hence the acts or user, which go to the proof of either the one or the other, must be, in the language of the civil law, nec vi nec clam nec precario; for a man cannot, as a general rule, be said to consent to or acquiesce in the acquisition by his neighbour of an easement through an enjoyment of which he has no knowledge, actual or constructive, or which he contests and endeavours to interrupt, or which he temporarily licenses. It is a mere extension of the same notion, or rather it is a principle into which by strict analysis it may be resolved, to hold, that an enjoyment which a man cannot prevent raises no presumption of consent or acquiescence. (emphasis added)
The plaintiff bears the onus of proof in respect of the elements to be proved in respect to both causes of action (easement by prescription by the doctrine of lost modern grant or pursuant to the Prescription Act).
In Maio, the Court of Appeal pointed out that the elements are identical whether in respect of the doctrine of lost modern grant or under the Prescription Act, and may be conveniently summarised as comprising: [4]
(a)open and uninterrupted use of A's property by B for at least 20 years; and
(b)the use has been open and not by stealth, force and violence or in secret.
[4] Maio v City of Stirling [No 2] [2016] WASCA 45 [72] – [78].
In calculating whether the 20‑year prescription period has been satisfied, the alleged claimant owner may add to his or her own period of use, any period of use of his or her predecessors in title by acquiescence, providing that there has been no interruption between the periods.[5]
[5] Pekel v Humich [1999] WASC 65 [135] (Templeman J); applying Auckran v Pakuranga Hunt Club (1905) 24 NZLR 235, 240 ‑ 241; see also, Sunshine Retail Investments Pty Ltd v Wulff [1999] VSC 415 [145] (Hedigan J); Bradbrook, Easements and Restrictive Covenants in Australia (3rd Ed) (2011) [5.15].
However, the Full Court of the Supreme Court of Western Australia in Gangemi v Watson,[6] held that a prescriptive easement was, on the facts, established over a laneway notwithstanding an interruption of user for a period of four years, whereby a predecessor in title chose not to use the laneway for that period. Importantly, in Gangemi there was (as in this case) a gate at the rear of the user's property from which the laneway could have been accessed at any time. In these circumstances, Seaman J (with whom Ipp and Wallwork JJ agreed) found that there had been continuous use during the period in question and thus the assertion of a continuous right.
[6] Gangemi v Watson (1994) 11 WAR 505.
The evidence
In an affidavit, sworn on 23 April 2019, Ms Patricia Robin Vos deposes that she was the owner of the plaintiff's property from 13 January 1995 until she sold the property in 2001. Her evidence is that:[7]
(a)she lived in the property from the time she became the owner until the property was sold and settlement occurred on 10 September 2001, when the property was sold to Ms Smith;
(b)throughout the six years she lived at the property, there was a gate at the rear of the plaintiff's property adjacent to the laneway land which was paved;
(c)there was a paved area behind the rear gate where she would park her car;
(d)she regularly used the laneway land by car to access the property;
(e)no one ever questioned or took issue with her use of the laneway land; and
(f)most of her neighbours who lived in a property that abutted the laneway land also used the laneway land to access their properties.
[7] Exhibit 2 [6] – [10].
Ms Smith, in her affidavit sworn on 23 April 2019, deposes that:[8]
(a)she purchased the property from Ms Vos and became the registered proprietor of the plaintiff's property on or about 9 September 2001; she sold the property to the plaintiff in 2018; and
(b)she parked her car in a paved area behind the rear gate on the property adjacent to the laneway land and she (and her partner who lived with her) used the laneway land by car to access the property almost every day whilst she resided at the property.
[8] Exhibit 1 [5] – [10].
Like Ms Vos, Ms Smith deposes that no one ever questioned or took issue with her use of the laneway land and most of her neighbours who had properties that abutted the laneway land also used the laneway land to access their property.[9]
[9] Exhibit 1 [11].
Mr David Charles White is the director and secretary of the plaintiff. In an affidavit, sworn on 23 April 2019, Mr White gives evidence of the following matters:[10]
[10] Exhibit 3.
(a)the plaintiff is a company that operates a small property development business and purchased the plaintiff's property on 11 June 2018 for the purposes of developing it for sale;
(b)the property shares a boundary with the laneway land that is paved;
(c)after purchasing the property, a dispute arose with the Town of Bassendean concerning a proposal the plaintiff made to build a new garage at the rear of the property;
(d)the plaintiff wishes to construct an enclosed garage at the rear of the property, as this is the best and most convenient place to enter and exit the property by car. The proposed garage would add considerable value to the property, and is essential to the profitability of this project for the property to be sold with a garage;
(e)the Town of Bassendean has refused permission to build the garage on grounds that, in their view, the plaintiff does not have any 'legal right' to access the property from the laneway land;[11]
(f)he has freely used the laneway land to enter and exit the property by car and by foot ever since the plaintiff purchased the property;
(g)Landgate historical imagery of 14 Kenny Street and laneway land show that the laneway land has existed since at least 1953 and appears to have been used by the owners of the property for access throughout that period. In particular, historical imagery captured in 1983, shows a vehicle is clearly visible on the property and the only access to the rear of the property is via the laneway land. A car is also clearly visible in historical images captured in 2008 and 2012;[12]
(h)many of the other houses that are adjacent to the laneway land use the laneway land to access their properties. The laneway land is extremely well developed. It is sealed with bitumen and has a high quality drainage system throughout;
(i)the laneway land is jointly owned by two individuals who died many years ago. The joint owners are the first executors of the defendants, Ms Kathleen Mary Kenny and Mr Hubert Stanley Wyborn Parker. Certificates of title for the laneway land evidences that Ms Kenny and Mr Hubert Parker became registered proprietors of the laneway land in 1915 and 1919 respectively; and
(j)the West Australian Register of Births, Deaths and Marriages evidence that Ms Kenny died in 1946 (death certificate register number 1611) and Mr Hubert Parker died in 1966 (death certificate register number 2440);[13]
[11] Exhibit 3, annexure DCW‑3; containing copies of correspondence between the Town of Bassendean and the plaintiff's solicitors concerning the plaintiff's application to the Town of Bassendean to build a garage at the rear of the property.
[12] Exhibit 3.
[13] Exhibit 3, annexure DCW‑4B (true copies of the extracts of searches of the West Australian Register of Births, Deaths and Marriages).
Mr White personally served the second defendant and the seventh defendant. Both the second defendant, Ms Mary Josephin Dinneen, and seventh defendant, Mr Ivor Alan Knight, each provided Mr White with a signed note stating that they do not intend to defend this matter nor do they have any objection to the granting of right of access to the laneway land to the plaintiff.[14]
[14] Exhibit 3, annexure DCW‑6.
The second to seventh defendants are all registered proprietors of land that abuts the laneway land, and have registered easements on each of their land titles permitting them to access their properties from the laneway land. The reason why they have registered easements is because their properties formed part of Deposited Plan 2787.
The second‑named first defendant, Ms Delphine Rose Anderson, who is the executrix of the will of Mr Hubert Parker, deposes in an affidavit sworn by her, on 13 May 2019, that she is the remaining executor of her father's estate and that her brother, Mr Stephen Hubert Parker, who was also appointed as an executor, has passed away. Ms Anderson also deposes that:[15]
(a)she was unaware that her late father's estate contained the piece of land comprising the laneway land being Lot 100 on Deposited Plan 54415 in Volume 2647 Folio 74;
(b)she has no objection to the orders sought by the plaintiff and would be happy to grant the plaintiff a right‑of‑way over the land forming the laneway land in order to access their property; and
(c)she does not wish to take part in these proceedings and will abide by whatever orders the court wishes to make.
[15] Exhibit 5 [3] – [5].
In an affidavit of Mr Alexander William Francis Gordon, a solicitor employed by Palmos Legal, the solicitors for the plaintiff, sworn on 2 July 2019, Mr Gordon deposes that:[16]
[16] Exhibit 9 [8] – [14].
(a)immediately prior to the case management conference on 15 May 2019, he conducted a probate inspection of the court probate file for Ms Kenny which revealed that probate for Ms Kenny was granted on 3 October 1946, and was allocated court reference PRO 1319/46;
(b)the probate grant reveals that Ms Kenny died on 27 July 1946, and that the West Australian Trustee Executor and Agency Company Ltd (WA Trustee) was the appointed executor;
(c)a letter found in the probate file from the WA Trustee to the Assistant Commissioner for Probate Duties dated 5 May 1972 revealed that:
(i)the WA Trustee remained the executors of Ms Kenny's estate as of 5 May 1972;
(ii)the laneway land was part‑owned by Ms Kenny, but was not listed as an asset of the estate at the time probate was granted;
(iii)the 'Mental Health Services' wished to resume a proportion of the right‑of‑way (on the laneway land);[17]
(d)a probate duty document dated 2 October 1972, reveals that the laneway land was considered valueless;
(e)the last will and testament of Ms Kenny's husband (Mr Kenny), dated 25 May 1908, revealed that Ms Kenny was the sole beneficiary and executrix for the estate of her late husband, Mr Kenny; and
(f)in 1989, the West Australian Trustees Ltd (Merger Act) 1989 (WA) provided that Perpetual Trustees WA Ltd became the successor at law to the undertakings of the WA Trustee.
[17] It appears this proposed resumption did not proceed.
Consequently, the first defendant, Perpetual remains entitled to deal with the land in their capacity as executor of Kathleen Kenny's estate.
In Mr Gordon's affidavit, sworn on 2 July 2019, he also deposes that he inspected the probate file for Mr Hubert Parker being probate file PRO 1709/66, dated 8 November 1966.[18] Mr Gordon's evidence is that this probate file shows that:[19]
(a)Ms Anderson and Mr Stephen Parker (son of the deceased and brother of Ms Anderson) were the duly appointed executors of the estate of Mr Hubert Parker; and
(b)the last will and testament of Mr Hubert Parker dated 2 February 1960, annexed to the order of probate, gives the executors wide discretionary powers to invest, convert or sell any of Mr Hubert Parker's real or personal property as they see necessary.
[18] Exhibit 9 [15].
[19] Exhibit 9 [15] – [16].
In his affidavit of 2 July 2019, Mr Gordon also deposes that he inspected probate file PRO 1673/04 of Mr Stephen Parker which discloses that Mr Stephen Parker died on 7 March 2004, leaving Ms Anderson as the sole executor of Mr Hubert Parker's estate.[20]
[20] Exhibit 9 [17].
Annexed to the affidavit of Mr Gordon, sworn on 2 July 2019, is a copy of a letter from Perpetual that was received by the plaintiff's solicitors, on 23 May 2019, in which it is stated on behalf of Perpetual that it does not have any objection to the plaintiff being granted a right‑of‑way over the land and does not otherwise wish to participate in the proceedings.[21]
[21] Exhibit 9, annexure AWFG‑12.
Evidence of use by the plaintiff and predecessors in title as of right
The plaintiff and its predecessors in title have used the laneway land for the purposes of access to and egress from the property for a period in excess of 20 years, as of right, prior to the commencement of these proceedings and done so openly and on a free and uninterrupted basis.[22]
[22] See generally, the affidavits of Mr David White, Ms Patricia Vos and Ms July Smith, each filed 23 April 2019.
The evidence shows that the property was purchased by the plaintiff from Ms Smith in 2001, who purchased it from Ms Vos in 1995. Ms Vos, Ms Smith and the plaintiff, by its director Mr Gordon, have all used the laneway land for access to and egress from the property since 1995 to the date of the commencement of these proceedings, being a period of approximately 24 years.[23]
[23] This action was commenced by writ of summons, filed on 22 February 2019.
Both of the registered proprietors of the laneway land were deceased by the time the period of use claimed began. The right of title to the laneway land vested with their respective executors, and the evidence shows that at least one of them should have had actual knowledge of that right.[24]
[24] See Exhibit 9 [10]; where the executors of Ms Kenny's estate found that the deceased was the owner of the land, but for unknown reasons the land was originally not included in her estate.
However, it should be borne in mind that actual knowledge of the usage on the part of the owner of the servient tenement is not necessary. It suffices if it is 'of such a character that an ordinary owner of the land, diligent in the protection of his interests, would have, or must be taken to have, a reasonable opportunity of becoming aware of the enjoyment'.[25]
[25] Union Lighterage Co v London Graving Dock Co [1902] 2 Ch 557, 571 (Romer LJ).
Ownership of the laneway land
At all relevant times the registered proprietors of the laneway land were, and remain, the first‑named first defendant (Ms Kenny) and the second‑named first defendant (Mr Hubert Stanley Wyborn Parker).
The plaintiff has adduced evidence of Ms Kenny and Mr Hubert Parker dying in 1946 and 1966 respectively.[26]
[26] Exhibit 9 [9], [15].
Ms Kenny's executor was the West Australian Trustee Executor and Agency Co Ltd, which later became Perpetual Trustees WA Ltd (Perpetual).[27] Perpetual do not oppose the orders sought.[28]
[27] Exhibit 9 [9], [14].
[28] Exhibit 9 [18], annexure AWFG‑12.
Mr Hubert Parker's estate had joint executors, being Ms Anderson and Mr Stephen Parker.[29] Only Ms Anderson survives, and she does not oppose the orders sought.
[29] Exhibit 9 [15].
In this case, knowledge by Ms Kenny's estate is in part established on the evidence, at least by 1972, and knowledge by the executors of both estates can be readily imputed as a diligent landowner would not only know of their ownership of all land but, in the circumstances of this matter, would be aware of the presence of adjoining landowners' regular use of that land.
Position of the remaining defendants
The remaining defendants are all those parties that currently have a registered easement over the laneway land. Annexed to these reasons, as 'Annexure A', is a copy of Landgate Deposited Plan 54415 which has added notations showing the location of each of the properties of the plaintiff and the second to seventh defendants in relation to the laneway land.
All of these parties have been served with the relevant documents, and evidence has been adduced that none of them oppose the orders sought and do not intend to participate in the proceedings.
Landgate was served with a copy of the writ which annexes the statement of claim; Landgate was invited to participate in the proceedings but have chosen not to do so.[30]
[30] Exhibit 7 [9] – [10], annexure AWFG‑4.
ANNEXURE A
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
EH
Research Associate/Orderly to the Honourable Justice Smith
12 JULY 2019
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