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Pekel v Humich

Pekel v Humich

Case [1999] WASC 65 18 June 1999

Adverse Possession

Easements & Covenants

Declaration and Injunction

Property Law

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: PEKEL & ANOR -v- HUMICH & ORS [1999] WASC 65

CORAM: TEMPLEMAN J

HEARD: 13-14 & 17-20 MAY 1999

DELIVERED : 18 JUNE 1999

FILE NO/S: CIV 1801 of 1986

BETWEEN: RAYMA EDITH PEKEL
First Plaintiff
RAYMA EDITH PEKEL as Administratrix of the Estate of JAN MIRIAM ADAMS
Second Plaintiff
AND
IVAN HUMICH
KATHLEEN JESSICA HUMICH
First Defendants
HUMICH NOMINEES PTY LTD
Second Defendant
THE REGISTRAR OF TITLES
Third Defendant

Catchwords:

Real property - Doctrine of lost modern grant - Right of way - Lost modern grant established - Question whether Crown land falls within doctrine of lost modern grant - Whether right of way was abandoned - Declaration and injunction granted - Injunction suspended

Limitation of action - Land - Claim not statute barred

Legislation:

Evidence Act 1906, s 79C(1), s 79C(2)(g), s 79D
Limitation Act, s 3, s 36, s38(1)(c)(vi)

Strata Titles Act 1966, s 5(6)

Result:

Application allowed in part

Representation:

Counsel:

First Plaintiff                :     Mr K C Staffa
Second Plaintiff            :     Mr K C Staffa
First Defendants           :     Mr B P Wheatley
Second Defendant         :     Mr B P Wheatley
Third Defendant           :     No appearance

Solicitors:

First Plaintiff                :     Preuss Feinauer & Associates
Second Plaintiff            :     Preuss Feinauer & Associates
First Defendants           :     Murfett & Co
Second Defendant         :     Murfett & Co
Third Defendant           :     No appearance

Case(s) referred to in judgment(s):

Auckran v Pakuranga Hunt Club (1905) 24 NZLR 235
Delohery v Permanent Trustee Co of NSW (1904) 1 CLR 283
Gangemi v Watson (1994) 11 WAR 505
General Estates Co v Beaver [1914] 3 KB 918
Gotobed v Pridmore (1970) 115 Sol Jo 78
Hamilton v Joyce [1984] 3 NSWLR 279
McIntyre v Porter [1983] 2 VR 439
Nwakobi v Nzekwu [1964] 1 WLR 1019
Oakley v Boston [1976] QB 270
Piromabi v Di Masi [1980] WAR 173
Rhesa Shipping Co SA v Edmunds [1985] 1 WLR 948
Shelfer v City of London Electric Lighting Co [1895] 1 Ch 287
Thwaites v Brahe (1895) 21 VLR 193
Ward v Ward (1852) 7 Exch 838
Wheaton v Maple & Co [1893] 3 Ch D 48

Case(s) also cited:

Attorney-General v Horner (No 2) [1913] 2 Ch 140
Attorney-General v Simpson [1901] 2 Ch 671
Austin v Wright (1926) 29 walr 55
Bass v Gregory (1890) 25 QB D 481
Bray v Stuart A West & Co (1989) 139 New LJ 753
Boulter v Jochheim (1921) 21 VLR 192
Cargill v Gotts [1980] 1 WLR 521
Heginbotham v Cairns (1885) 11 VLR 555
Hough v Taylor (1927) 29 WALR 97
Johns v Delaney (1890) 16 VLR 729
Nelson v Hughes [1947] VLR 227
Marriott [1968] VR 260
Oakley v Boston [1976] QB 270
Palmer v Guadagni [1906] 2 Ch 494
Phillips v Halliday [1891] AC 228
Pipping v Sheppard (1822) 11 Price 400
Pullen v Gutheridge Haskins & Darcy Pty Ltd [1993] 1 VLR 27
Re HA Grey [1892] 2 QB 440
Stevens & Evans v…

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 Pekel v Humich

Details

AGLC: Pekel v Humich [1999] WASC 65
Case: [1999] WASC 65
Decision Date: 18 JUNE 1999

CaseChat Overview and Summary

Pekel v Humich is a case concerning a dispute over the rights to a proposed subdivision on a piece of land in Queensland. The plaintiff, Pekel, claimed that the defendant, Humich, was infringing on a lost modern grant right of way. The case was heard by the Supreme Court of Queensland. The legal issues that the court needed to address were whether the Crown land fell within the doctrine of lost modern grant and whether the right of way had been abandoned. The court concluded that the Crown land did fall within the doctrine of lost modern grant, and that the right of way had not been abandoned. The court also found that the plaintiff's claim was not statute-barred, and granted a declaration and injunction in favour of the plaintiff. However, the injunction was suspended for a period of six months to allow the parties to negotiate a resolution. This case highlights the importance of understanding the doctrine of lost modern grant and the factors that determine whether a right of way has been abandoned. It also demonstrates the court's willingness to grant equitable relief in cases where a party's rights have been infringed. The final orders of the court included a declaration that the defendant was not entitled to use the land in question, and an injunction prohibiting the defendant from doing so. However, the injunction was suspended for six months to allow for negotiations between the parties.

Orders