Montague Holdings (Int) Pty Ltd v Worth
[2018] WASC 56
•20 FEBRUARY 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: MONTAGUE HOLDINGS (INT) PTY LTD -v- WORTH [2018] WASC 56
CORAM: MASTER SANDERSON
HEARD: 24 JANUARY 2018
DELIVERED : 20 FEBRUARY 2018
FILE NO/S: CIV 1801 of 2017
BETWEEN: MONTAGUE HOLDINGS (INT) PTY LTD as Trustee for the PA & VJ MONTAGUE FAMILY TRUST
Plaintiff
AND
MICHAEL DAVID WORTH
First DefendantWINGS PROPERTY INVESTMENTS PTY LTD
Second DefendantNICHOLAS MATTHEW HELM
SARAH MARIE CALAUTTI
Third DefendantVALDA RAE MORTON
NOEL ROBERT MORTON
Fourth DefendantJUDITH GAYE O'HALLORAN
Fifth DefendantLUCA NALDONI
Sixth DefendantROSINA TUFILLI
SIMON WHEELER
Seventh DefendantsTHE OWNERS OF SURVEYSTRATA PLAN 53916, 2224 PEARL PARADE, SCARBOROUGH
Eighth Defendant
Catchwords:
Property law - Extinguishment of right of carriageway over adjoining property - Turns on own facts
Legislation:
Transfer of Land Act 1893 (WA)
Result:
Order made extinguishing right of way
Category: B
Representation:
Counsel:
Plaintiff: Mr G D Cobby
First Defendant : No appearance
Second Defendant : No appearance
Third Defendant : In person
Fourth Defendant : In person
Fifth Defendant : In person
Sixth Defendant : In person
Seventh Defendants : In person
Eighth Defendant : No appearance
Solicitors:
Plaintiff: Michael Paterson & Associates
First Defendant : No appearance
Second Defendant : No appearance
Third Defendant : In person
Fourth Defendant : In person
Fifth Defendant : In person
Sixth Defendant : In person
Seventh Defendants : In person
Eighth Defendant : No appearance
Case(s) referred to in judgment(s):
Anascot Pty Ltd v Alcoa of Australia Ltd [2017] WASCA 228
C Hunton Ltd v Swire [1969] NZLR 232
In Re Truman, Buxton & Co Ltd's Application [1956] 1 QB 261
The Owners of Corrine Court 290 Stirling Street Perth Strata Plan 12821 v Shean Pty Ltd [2000] WASC 181; (2000) 23 WAR 1
MASTER SANDERSON: The plaintiff in this matter is the registered proprietor of land known as 18 Ozone Parade, Trigg. It is subject to a right of carriageway created on 3 July 1952. That right of carriageway was created by a transfer by the plaintiff's predecessor in title of the right over 18 Ozone Parade to the then registered proprietor of the adjoining land at 22 Pearl Parade, Scarborough.
The right of carriageway granted the registered proprietor of 22 Pearl Parade and their transferees and assigns and their tenants, servants, agents, workmen and visitors the full and free right and liberty to go, pass and repass at all times and for all purposes with or without animals or vehicles into and out of and from the land or any part thereof through, over and along the road or way. This entitlement emerges from s 65(2) of the Transfer of Land Act 1893 (WA) read with the ninth schedule to the Act.
An aerial photograph of 18 Ozone Parade and 22 Pearl Parade as at 1953 shortly after the creation of the right of carriageway is found as annexure A to the report of Craig Andrew Miller attached to his affidavit sworn 16 May 2017.
In 2007 22 Pearl Parade was redeveloped. In the course of the redevelopment a driveway was constructed providing separate access to 22 Pearl Parade. The ground level of 22 Pearl Parade was altered with the result that the average difference in the ground levels of 18 Ozone Parade and 22 Pearl Parade became 2 m with a range between 1.84 m and 2.64 m. A retaining wall and dividing fence was constructed between the two properties. A residential complex containing seven strata titled units was constructed upon 22 Pearl Parade. A further aerial photograph, being annexure C to Mr Miller's report, shows the position after the 2007 redevelopment. The first to seventh defendants are the present owners of the seven units.
By this application the plaintiff seeks to have the right of way extinguished. The application is brought under s 129C(1) of the Transfer of Land Act. That section reads as follows:
(1)Subject to subsection (1a), where land under this Act is subject to an easement or to any restriction arising under covenant or otherwise as to the user thereof or the right of building thereon, the court or a judge may from time to time on the application of any person interested in the land burdened or benefited, or any local government or public authority benefited, by the easement or restriction, by order wholly or partially extinguish, discharge or modify the easement or restriction upon being satisfied -
(a)that by reason of any change in the user of any land to which the easement or the benefit of the restriction is annexed, or of changes in the character of the property or the neighbourhood or other circumstances of the case which the court or a judge may deem material the easement or restriction ought to be deemed to have been abandoned or to be obsolete or that the continued existence thereof would impede the reasonable user of the land without securing practical benefits to other persons or (as the case may be) would unless modified so impede such user; or
(b)that the persons of full age and capacity for the time being or from time to time entitled to the easement or to the benefit of the restriction whether in respect of estates in fee simple of any lesser estates or interests in the land to which the easement or the benefit of the restriction is annexed have agreed to the same being wholly or partially extinguished, discharged or modified or by their acts or omissions may reasonably be considered to have abandoned the easement or to have waived the benefit of the restriction wholly or in part; or
(c)that the proposed extinguishment, discharge or modification will not substantially injure the persons entitled to the easement or to the benefit of the restriction.
At the hearing each of the third through to seventh defendants appeared in person and opposed the plaintiff's application. The eighth defendant is the strata company and it is vested with the common property. It might well be the case that the right of carriageway, properly considered, is part of the common property of 22 Pearl Parade and therefore the eighth defendant is the proper and only defendant. This was a matter raised by counsel for the plaintiff but not developed to any extent. The opposition to the application was left to the defendants present in court and counsel for the plaintiff indicated he was content to allow them to make submissions and say what they wished in opposition to the application.
In support of its application the plaintiff relied on five affidavits which are respectively exhibits 1 through to 5. I need not refer to any of the material in those affidavits beyond what I have mentioned in the affidavit of Mr Miller. There was no challenge to any of the evidence in the affidavits. Mr Miller is a qualified surveyor who trades under the name Vision Surveys Consulting. He was asked to prepare a report and in doing so he produced a number of photos and what might be called a ground report. Beyond matters which I have mentioned earlier in these reasons there is nothing in Mr Miller's report which requires further attention.
Each of the defendants who appeared at the hearing filed an affidavit. In the case of the second‑named seventh defendant two affidavits were filed. These were respectively exhibits A through to E. Objection was taken to certain paragraphs of these affidavits. It is unnecessary for me to consider those objections in detail. None of the paragraphs complained of have played any part in my decision.
It was the plaintiff's contention that the right of carriageway was obsolete. Section 129C(1)(a) confers a discretionary power on the court to extinguish an easement either at the request of a land owner burdened or benefited by the easement or restriction. Section 129C(1)(c) requires the party seeking to have the restriction extinguished to satisfy the court the extinguishment 'will not substantially injure the persons entitled to the easement'. So the question is not whether extinguishment of the restriction will injure persons entitled to the restriction but whether it will 'substantially' injure those persons. The word 'substantially' clearly indicates that the injury must be something more than incidental or minor. It must have a real and enduring impact on the party in whose favour the restriction operates.
There does appear to be a difference of judicial opinion about the proper approach to s 129C(1)(a). These two differing approaches might be referred to as the 'historical' approach as against the 'present use' approach. The difference between the two was considered by the Court of Appeal in Anascot Pty Ltd v Alcoa of Australia Ltd [2017] WASCA 228. Their Honours said [72] ‑ [74]:
As noted earlier, Anascot relies on the observations of Romer LJ (Birkett LJ & Evershed MR agreeing) in the case of In Re Truman. In that case, his Lordship said:
'It seems to me that the meaning of the term "obsolete" may very well vary according to the subject-matter to which it is applied. Many things have some value, even though they are out of date in kind or in form - for example, motor-cars or bicycles, or things of that kind - but here we are concerned with its application to restrictive covenants as to user, and these covenants are imposed when a building estate is laid out, as was the case here of this estate in 1898, for the purpose of preserving the character of the estate as a residential area for the mutual benefit of all those who build houses on the estate or subsequently buy them.
It seems to me that if, as sometimes happens, the character of an estate as a whole or of a particular part of it gradually changes, a time may come when the purpose to which I have referred can no longer be achieved, for what was intended at first to be a residential area has become, either through express or tacit waiver of the covenants, substantially a commercial area. When that time does come, it may be said that the covenants have become obsolete, because their original purpose can no longer be served and, in my opinion, it is in that sense that the word "obsolete" is used in section 84(1)(a) [of the relevant English statute]. (emphasis added)'
Cases which have adopted those observations in this context include Driscoll v Church Commissioners for England; Re Alexandra; Re Miscamble's Application and Re Robinson.
On the other hand, Alcoa contends, in effect, that the language of 'obsolete' in s 129C(1)(a) also conveys the notion of the restriction serving no present useful purpose. Reference is made to the decision of Mason P (Stein JA agreeing) in Durian (Holdings) Pty Ltd v Cavacourt Pty Ltd and Davidson v Elkington. In Suhr, Pagone J appeared to accept the possibility that a restriction may not be 'obsolete' within the meaning of the relevant provision if it provides a continuing benefit to persons by maintaining a restriction on the user of land, notwithstanding the fact that the purpose for which it was designed has since become wholly obsolete. That view appears to be consistent with the view expressed by Denning LJ in Driscoll, although Hodson & Morris LJJ in Driscoll applied the observations of Romer LJ in In Re Truman.
Their Honours in that case proceeded on the basis of the historical approach adopted by Romer LJ in In Re Truman, Buxton & Co Ltd's Application [1956] 1 QB 261. But they did so on the basis that was the positon most favourable to the appellant and without determining which of the two approaches was to be preferred. In this case the approach most favourable to the defendants is the present use approach. Counsel for the plaintiff accepted that is the approach that should be adopted for the purposes of this application and accordingly it is the basis upon which I have approached the matter. But I have not presumed to determine, for the purposes of these reasons, which of the two approaches is preferable.
Before leaving this issue I should observe that were the historical approach to be adopted then there is no question but that the restriction is obsolete. When it was granted it was the sole means of access to 22 Pearl Parade. Without it the land was landlocked and useless. But that has now changed. The unit holders have access from Pearl Parade and can drive their cars down the carriageway and park on their strata lots. The benefit which existed historically is no more.
In looking at the totality of the evidence it is clear the right of carriageway is no longer of any benefit to the defendants. None of the defendants suggested it could be used for vehicular access to 22 Pearl Parade. At the edge of the plaintiff's property, that is at the end of the right of way as it abuts 22 Pearl Parade, there is a 2 m drop. It is a sheer drop. There is a retaining wall and on top of that retaining wall is a fence. But even assuming the fence was not in position it is not remotely possible that a vehicle could traverse the right of way on 18 Ozone Parade and enter 22 Pearl Parade.
It is also difficult to see how anyone on foot could make use of the right of carriageway. Mr Wheeler said during the hearing that he had climbed over the fence onto the retaining wall and walked along the wall thereby obtaining access to 22 Pearl Parade. While I accept what he said and admire his resourcefulness, the undertaking is hazardous. Even assuming the fence was not in position Mr Wheeler would have to walk some distance along a narrow retaining wall which at its lowest was 1.8 m above ground level. It is difficult to imagine that the residents of 22 Pearl Parade no matter how nimble they might be, would make constant use of this mode of ingress and egress. Rather than risk life and limb they could simply walk down to Pearl Parade and exit the property. Doubtless that is what they do on a regular basis.
It was somewhat difficult to ascertain precisely why the defendants opposed the plaintiff's application. The property at 18 Ozone Parade is being redeveloped with units. The consequence of that redevelopment is that extensive ocean views previously enjoyed by the owners of the units at 22 Pearl Parade have been obliterated. Some units retain some limited views but by and large the defendants have been built out. That unfortunate fact is due to the planning approvals issued by the local authority. There was nothing in the evidence to suggest the plaintiff has done anything other than comply with the local authority's requirements and that the building is proceeding other than in accordance with the terms and conditions of planning approval. It does seem the defendants are concerned that if the right of carriageway is removed there will be an alteration to the plans presently approved for 18 Ozone Parade with the effect there will be even more construction on the site and the defendants' views will be further restricted.
The difficulty with that argument is that there was no evidence direct or indirect that would be the case. One of the plaintiff's witnesses was Ashley Charles Richards the architect who is presently overseeing construction of the units on 18 Ozone Parade. He was cross‑examined about aspects of the development. Nothing in his evidence suggested that if the right of carriageway was extinguished there would be an alteration to the plans. That is hardly surprising. Mr Richards is engaged by the plaintiff as an architect. He follows the plans as they presently exist. Any alteration to the development either by adding units or otherwise would be a decision taken by the plaintiff and it would require approval of the local authority. There was nothing in Mr Richards' evidence and nothing that emerged from his cross‑examination to suggest the greater density feared by the defendants would eventuate.
In summary, there is nothing in the evidence to indicate that extinguishment of the right of carriageway would injure, let alone substantially injure, the defendants. There was some suggestion by the defendants that at some stage in the future steps might be taken to put in a stairway which would make the right of carriageway useful. The authorities show that any proposed future use by the dominant tenement is irrelevant: see C Hunton Ltd v Swire [1969] NZLR 232, 234 and The Owners of Corrine Court 290 Stirling Street Perth Strata Plan 12821 v Shean Pty Ltd [2000] WASC 181; (2000) 23 WAR 1 [97] ‑ [98]. Furthermore, there is nothing which would justify an exercise of my discretion to refuse the plaintiff's application. There is nothing in the evidence which could weigh in the balance and justify refusing to extinguish a restriction which is clearly obsolete.
Accordingly I will make orders broadly in terms of those sought by the plaintiff. However, before making those orders I will give the defendants the chance to make submissions as to their form.
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