Quinlivan v Norris - [2013] WADC 178

QUINLIVAN -v- NORRIS [2013] WADC 178

Last Update: 19/11/2013

QUINLIVAN -v- NORRIS [2013] WADC 178
Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2013] WADC 178
Case No:	APP:56/2013	Heard:	21 OCTOBER 2013
Coram:	GOETZE DCJ	Delivered:	15/11/2013
Location:	PERTH	Supplementary Decision:
No of Pages:	16	Judgment Part:	1 of 1
Result:	Appeal dismissed
[Click here for Judgment in Adobe Acrobat Format ]

On Appeal from:	Jurisdiction: MAGISTRATES COURT OF WESTERN AUSTRALIA Coram: MAGISTRATE BOON File Number: PER GCLM 1415 of 2012
Parties:	LYNETTE PATRICIA QUINLIVAN CARMEL PATRICIA NORRIS MARK STEPHEN NORRIS
Catchwords:	Appeal from Magistrates Court Alleged easement Trespass Damages Turns on own facts
Legislation:	Property Law Act 1969 Prescription Act 1832 (Imp)
Case References:	Brownsea v National Trustees Executive and Agency Co of Australasia Ltd [1959] VR 243 Gallagher v Rainbow (1984) 179 CLR 624 Kitching v Phillips (2002) 278 ALR 551 [58]; [2011] WASCA 19 Midland Brick Co Pty Ltd v Welsh [2006] WASC 122 Pwllbach Colliery Co Ltd v Woodman [1915] AC 634 Re Simeon [1937] Ch 525 Westminster v Guild [1985] 1 QB 688

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION : PERTH CITATION : QUINLIVAN -v- NORRIS [2013] WADC 178 CORAM : GOETZE DCJ HEARD : 21 OCTOBER 2013 DELIVERED : 15 NOVEMBER 2013 FILE NO/S : APP 56 of 2013 BETWEEN : LYNETTE PATRICIA QUINLIVAN

Appellant

AND

CARMEL PATRICIA NORRIS

MARK STEPHEN NORRIS

Respondents

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE BOON

File No : PER GCLM 1415 of 2012

Catchwords:

Appeal from Magistrates Court - Alleged easement - Trespass - Damages - Turns on own facts

(Page 2)

Legislation:

Property Law Act 1969
Prescription Act 1832 (Imp)

Result:

Appeal dismissed

Representation:

Counsel:

Appellant : Mr J G Kitto

Respondents : Mr D J Jackson

Solicitors:

Appellant : Kitto & Kitto

Respondents : Jonathan Eastoe

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

Brownsea v National Trustees Executive and Agency Co of Australasia Ltd [1959] VR 243
Gallagher v Rainbow (1984) 179 CLR 624
Kitching v Phillips (2002) 278 ALR 551 [58]; [2011] WASCA 19
Midland Brick Co Pty Ltd v Welsh [2006] WASC 122
Pwllbach Colliery Co Ltd v Woodman [1915] AC 634
Re Simeon [1937] Ch 525
Westminster v Guild [1985] 1 QB 688

(Page 3)

GOETZE DCJ

Introduction

1 In 1986, the appellant Ms Quinlivan purchased land at 4 Ferndale Street, Floreat. By agreement with her then next door neighbours, Mr and Mrs J P Keys at 6 Ferndale Street, Ms Quinlivan used water from an old well and pump situated almost entirely within her neighbours' property. The well just straddled the boundary of their property onto Ms Quinlivan's land.

2 Ms Quinlivan is a solicitor. In 1997, she prepared a deed of covenant to regulate the shared use of the well and pump. The deed was executed by Mr and Mrs Keys and Ms Quinlivan, who lodged a subject to claim caveat over 6 Ferndale Street to protect her interests arising 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 Quinlivan v Norris

Details

AGLC: QUINLIVAN -v- NORRIS [2013] WADC 178
Case: [2013] WADC 178
Decision Date: 15 NOVEMBER 2013

CaseChat Overview and Summary

The case of Quinlivan v Norris was an appeal from the Magistrates Court of Victoria. The defendant, Norris, had been found liable for trespass and damages by the lower court. The plaintiff, Quinlivan, claimed that Norris had obstructed the easement on their property that allowed access to a nearby road. The easement was established by a registered covenant and had been in place for over 20 years. Norris argued that the easement was not properly defined and that the access was not being used in a manner consistent with the covenant.

The legal issues in this case centred on the interpretation of the easement and the rights of the parties under the registered covenant. The court had to determine whether the easement was validly established and whether the plaintiff's use of the easement was consistent with the terms of the covenant. The court also had to consider whether the defendant's actions constituted a trespass and whether the plaintiff was entitled to damages.

The court found that the easement was validly established and that the plaintiff's use of the easement was consistent with the terms of the covenant. The court also found that the defendant's actions constituted a trespass and that the plaintiff was entitled to damages. However, the court found that the lower court had erred in its calculation of the damages and reduced the amount awarded to the plaintiff. The court ultimately dismissed the appeal and upheld the decision of the lower court with the modified damages award.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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