McCrow v Chaplin - [2009] NSWSC 965

CITATION: McCrow v Chaplin [2009] NSWSC 965

HEARING DATE(S): 27 August 2009

JURISDICTION: Equity Division

JUDGMENT OF: Brereton J

EX TEMPORE JUDGMENT DATE: 27 August 2009

CATCHWORDS: REAL PROPERTY – Torrens title – Easements – Right of carriageway – right to fence – Where plaintiff has right of carriageway over access handle to defendant’s property – where plaintiff claims that defendant has obstructed right of carriageway by erecting fence along the boundary of the right of carriageway – where gate cannot be opened from plaintiff’s side – extent of access points permitted from easement to dominant land – held: existing gate to be rendered able to be opened from within dominant land – plaintiff would not be exceeding reasonable user by relocating gate or installing second access point. – COSTS – general rule – costs follow the event – whether to depart from general rule – where plaintiff pursued claims to relief to which not entitled – where plaintiff made offer of compromise though not in compliance with UCPR r 20.26 – where if offer accepted defendant would have been no worse off – held: defendant to pay plaintiff’s costs

LEGISLATION CITED: (NSW) Conveyancing Act 1919 s 181A
(NSW) Uniform Civil Procedure Rules 2005 r 20.26

CATEGORY: Principal judgment

CASES CITED: Trewin v Felton (2007) 13 BPR 24,579, [2007] NSWSC 851

PARTIES: Kenneth Bruce McCrow (plaintiff)
Leslie Bert Chaplin (defendant)

FILE NUMBER(S): SC 5965/08

COUNSEL: Mr P Singleton (plaintiff)
Mr A Pickles (defendant)

SOLICITORS: LD Rogers Solicitor (plaintiff)
Kemp Strang (defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRERETON J

Thursday 27 August 2009

5965/08 Kenneth Bruce McCrow v Leslie Bert Chaplin

JUDGMENT (ex tempore)

1 HIS HONOUR: The plaintiff Kenneth Bruce McCrow is the registered proprietor of 4 Windsor Place, St Ives, being the land comprised in lot 19, Deposited Plan 517542, which is benefited by a right of carriageway over the access handle to lot 20 in the same Deposited Plan, situated to its rear, of which the defendant Leslie Bert Chaplin is the registered proprietor. Mr McCrow claims that Mr Chaplin has obstructed the right of carriageway by erecting a fence along the boundary between the right of carriageway and lot 19.

2 The instrument creating the right of carriageway describes it as “Right of carriageway within the meaning of s 181A of the Conveyancing Act”. (NSW) Conveyancing Act 1919, s 181A, has the effect that a right of carriageway created, as this was, after 1 January 1931, is taken to be in accordance with Part 1 of Schedule 8, namely:

Full and free right for every person who is at any time entitled to an estate or interest in possession in the land herein indicated as the dominant tenement or any part thereof with which the right shall be capable of enjoyment, and every person authorised by that person, to go, pass and repass at all times and for all purposes with or without animals or vehicles or both to and from…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading McCrow v Chaplin

Details

AGLC: McCrow v Chaplin [2009] NSWSC 965
Case: [2009] NSWSC 965
Decision Date: 27 August 2009

CaseChat Overview and Summary

The case of McCrow v Chaplin involved the plaintiff, McCrow, who held a right of carriageway over an access path leading to the defendant, Chaplin’s, property. McCrow alleged that Chaplin had obstructed this right by erecting a fence along the boundary of the right of carriageway, making it impossible to open the gate from McCrow’s side. The dispute was heard in the Supreme Court of Victoria, where the primary issue was whether the plaintiff’s right of carriageway was being unreasonably obstructed and whether there were any permissible modifications to the access points from the easement.

The court was required to determine the extent of access points permitted from an easement to the dominant land. It needed to decide if the plaintiff was exceeding reasonable user by relocating the gate or installing a second access point. Furthermore, the court needed to consider whether the general rule of costs following the event should be departed from, given the plaintiff's unsuccessful pursuit of claims and non-compliance with the offer of compromise under the UCPR.

In its judgment, the court found that the existing gate needed to be rendered operable from within the dominant land. The court held that McCrow would not be exceeding reasonable user by relocating the gate or installing a second access point. Regarding the costs, the court decided that Chaplin should pay McCrow’s costs, given that the plaintiff pursued claims to relief to which they were not entitled and failed to comply with the rules for offers of compromise. The court concluded that if the offer had been accepted, Chaplin would not have been any worse off, justifying the costs order.

Orders