Sader v Langham - [2018] NSWSC 727

Supreme Court

New South Wales

Medium Neutral Citation: Sader v Langham [2018] NSWSC 727
Hearing dates: 30 April 2018; 1 – 2 May 2018
Date of orders: 22 May 2018
Decision date: 22 May 2018
Jurisdiction: Equity
Before: Darke J
Decision:
Statement of Claim dismissed with costs.

Catchwords: LAND LAW – easements – adjacent rights of way – construction of easements – whether rights of way permit passing and re-passing using vehicles – substantial interference – whether work performed on right of way amounts to a substantial interference – no substantial interference established – damages – claimed diminution in value of land – expert valuation opinion based on assumptions which lacked evidentiary foundation
Cases Cited: Hare v van Brugge (2013) 84 NSWLR 41; [2013] NSWCA 74
Hemmes Hermitage Pty Ltd v Abdurahman (1991) 22 NSWLR 343
Keefe v Amor [1965] 1 QB 334
McCrohan v Harith [2010] NSWCA 67
Powell v Langdon (1944) 45 SR (NSW) 136
Prospect County Council v Cross (1990) 21 NSWLR 601
Sertari Pty Ltd v Nirimba Developments Pty Ltd (2008) NSW Conv. R 56-200; [2007] NSWCA 324
St Edmundsbury and Ipswich Diocesan Board of Finance v Clark (No 2) [1973] 1 WLR 1572
Treweeke v 36 Wolseley Road Pty Ltd (1973) 128 CLR 274
Westfield Management Ltd v Perpetual Trustee Company Ltd (2007) 233 CLR 528; [2007] HCA 45
Category: Principal judgment
Parties: Mark Anthony Sader (First Plaintiff)
Sandra Sader (Second Plaintiff)
Angela Louise Langham (First Defendant)
Margaret Williamson (Second Defendant)
Representation:
Counsel:
Mr S Robertson with Mr M Forgacs (Plaintiffs)
Mr M Astill (Defendants)
Solicitors:
Colin Biggers & Paisley (Plaintiffs)
Macedone Legal (Defendants)

File Number(s): 2016/142471
Publication restriction: None

Judgment

Introduction

The plaintiffs, Mark and Sandra Sader, are the owners of a property at 31 Queens Road, Connells Point. The title reference of the property is Lot 100 in Deposited Plan 1079077. The property has the benefit of certain easements, including rights of way that burden the properties at 29A and 31A Queens Road, Connells Point (Lot B in Deposited Plan 361278 and Lot 101 in Deposited Plan 1079077 respectively). The owners of those properties are Angela Langham (the first defendant) and Margaret Williamson (the second defendant).
The plaintiffs allege that certain works that have been constructed on the rights of way by the first defendant amount to a substantial interference with their rights. The plaintiffs did not press their claims for mandatory injunctive relief to remedy the alleged interference, but maintain, against the first defendant, a claim for damages. The plaintiffs contend that the works have caused the value of their land to be significantly diminished.
The rights of way were created in about 1948 following a sub-division of the land in Lot 23, Section 5 of Deposited Plan 3733 to create Lots A, B, C and D. Those lots were identified by reference to a plan that was filed and may be referred to as FP 361278. The plan depicts four long rectangular blocks lying between Queens Road to the south…

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 Sader v Langham

Details

AGLC: Sader v Langham [2018] NSWSC 727
Case: [2018] NSWSC 727
Decision Date: 22 May 2018

CaseChat Overview and Summary

The dispute in Sader v Langham involved the interpretation and enforcement of easements over land owned by the plaintiff, Sader, and the adjacent property owned by the defendant, Langham. The case was heard in the Supreme Court of Victoria, where the plaintiff sought clarification and enforcement of rights of way over the defendant's land. The plaintiff argued that the rights of way permitted the use of vehicles, and that the defendant's actions constituted a substantial interference with these rights. The defendant, on the other hand, contended that the rights of way were limited to pedestrian use only and that no substantial interference had occurred.

The central legal issues before the court were the extent and scope of the rights of way granted by the easement, whether these rights permitted vehicular passage, and whether the defendant's actions constituted a substantial interference with these rights. The court was also required to determine the appropriate remedy for any established interference, including whether damages could be claimed for the diminution in value of the plaintiff's land.

The court examined the terms of the easement and found that they did not explicitly permit the use of vehicles. However, the court held that the rights of way were not limited to pedestrian use only, as the plaintiff had argued. The court found that the evidence did not establish that the defendant's actions amounted to a substantial interference with the plaintiff's rights of way. Furthermore, the court dismissed the plaintiff's claim for damages based on a diminution in value, finding that the expert's valuation opinion was based on assumptions that lacked evidentiary support.

The court's final orders confirmed that the rights of way permitted both pedestrian and vehicular passage, but did not establish that the defendant's actions constituted a substantial interference. The plaintiff's claim for damages for the diminution in value of the land was dismissed.

Orders