Scorcon Nominees Pty Ltd v South Yarra Station Developments Pty Ltd
[2004] VSC 63
•25 February 2004
SUPREME COURT OF VICTORIA
PRACTICE COURT
No. 4397 of 2004
| SCORCON NOMINEES PTY LTD | |
| Plaintiff | |
| v. | |
| SOUTH YARRA STATION DEVELOPMENTS PTY LTD | Defendant |
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JUDGE: | MANDIE J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 25 February 2004 | |
DATE OF ORDER: | 25 February 2004 | |
MEDIUM NEUTRAL CITATION: | [2004] VSC 63 | |
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Practice and Procedure – Application for interlocutory injunction to restrain interference with alleged easement – interference with or obstruction of alleged easement of carriageway
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| APPEARANCES: | Counsel | Solicitors |
| Plaintiff | Mr B. Stafford | Elliott Stafford & Associates |
| Defendant | Mr J. Isles with Ms J. Tooher | Salinger & Associates |
HIS HONOUR:
In this proceeding the court granted an injunction on the 13 February 2004, of an interim nature, restraining the defendant, its servants and agents from interfering with, interrupting or obstructing in any way the plaintiff, its servants or agents or any invitee or licensee of the plaintiff from using, accessing or passing over an alleged right of carriageway running across the rear of the land known as 232 Smith Street, Collingwood, from the cross-over in Stanley Street in a generally north-south direction and parallel to Smith Street and being as wide as the Stanley Street cross-over.
2 The basis of that interim order was the allegation in the statement of claim endorsed on the writ that the plaintiff was entitled to an easement of carriageway over the area of land to which I have just referred. The plaintiff in its statement of claim has pleaded a number of bases for that easement: the rule in Wheeldon v. Burrows, s.98 of the Transfer of Land Act 1958, intended easement, s.62 of the Property Law Act 1958, easement of necessity, doctrine of loss modern grant and equity of acquiescence.
3 However, for the purposes of this application which is for a continuation of the interim injunction until trial, the plaintiff's counsel has relied only on two of those bases, putting to the forefront the rule in Wheeldon v. Burrows which is pleaded from paragraphs 6 to 10 of the statement of claim, and putting as a secondary basis, s.98 of the Transfer of Land Act which is pleaded at paragraphs 11 to 14 of the statement of claim.
4 I am not satisfied on the evidence or on the argument that was presented to me at this stage that there is any clear basis for the alleged easement under s.98 of The Transfer of Land Act, so it comes down to, in the first instance, whether there is a serious question to be tried arising from the plaintiff's reliance upon the rule in Wheeldon v. Burrows. In essence, that rule is to the effect that, if an owner grants land to a grantee that grant carries with it all continuous easements which are necessary and reasonable and which are apparent and have been used by the owner for the benefit of the part granted to the grantee. I paraphrase the rule.
5 An initial difficulty is faced by the plaintiff in that the allegation in the statement of claim is that the relevant grant occurred in 1918 and that the grant at that time to the predecessor in title the plaintiff carried with it the continuous and apparent easement with which the rule in Wheeldon v. Burrows is concerned. However, written submissions on behalf of the defendant, which have attached to them a series of plans purporting to depict the history of these two blocks of land from 1912 until the present time, paint a much more complicated picture and counsel for the plaintiff was not inclined to dispute what appears from those diagrams which are attached to the defendant's submissions. It is not clear to what extent the evidence before the court actually supports the defendant's version but it seems to be common ground for present purposes that it is not inaccurate although not all of the details are still available.
6 Doing the best I can on the basis of those plans, it appears that the relevant period to be considered for the purpose of the rule in Wheeldon v. Burrows (although it is not the way the matter has been pleaded) is a period from around 1952 to 1968 when a Mr Rook owned both pieces of land in question and some other land which has since been transferred out at the rear of both blocks in separate parcels and it appears that if the rule in Wheeldon v. Burrows is to be applicable, that the relevant grant may perhaps be one from Mr Rook to Simons Investments or at least the following transfer from Simons Investments to Union Fidelity Trustee Group.
7 To recapitulate on that: in 1968 Rook owned both lots and he transferred both lots to Simons Investments and Simons Investments transferred the plaintiff's land to Union Fidelity Trustee Group and it is said by the plaintiff, (concededly it will need amendments to the statement of claim) that that transfer by Simons Investments to Union Fidelity Trustee Group carried with it a continuous and apparent easement. However, the documentation is not all before the court and the case is a bit hazy at this stage. The evidence is also hazy as to whether there was any continuous and apparent easement between 1952 to 1968 which was used by the owners of the land for the benefit of the land which is now the plaintiff's land.
8
Mr Stafford of counsel for the plaintiff submits that, as I understand it, it can be inferred from the evidence, particularly paragraphs 6 to 8 of Mr Consella's affidavit that there must have been a use of this alleged right of carriageway at all times during that period by virtue of the position of the goods door at the rear of the plaintiff's land and a car port behind that and the paving which leads to the side street. It may be that it is arguable that such an inference can be drawn but the evidence is, to say the least, very unsatisfactory at this stage and I am hesitant really to conclude - I certainly cannot conclude what was submitted to me by counsel for the plaintiff: that there is a strong case for the plaintiff. I do not have to decide that and I certainly do not think I can decide that. I am a little doubtful at this stage on the evidence as to whether there is even a serious question to be tried. If there is, it is very much on the borderline having regard to the lack of precise evidence and given that the case now put up is quite different to that pleaded in the statement of claim.
9 I need to take into account in deciding what is just and convenient both whether there is a serious question to be tried, and as I say, I have some doubt about that although perhaps the matter just creeps over the line, but also the balance of convenience. When it comes to the balance of convenience, I tend to think that that favours the defendant. There is considerable evidence with which I am impressed that there are real risks of harm to the defendant and others while certain propping is in existence, holding up the fire damaged building on the defendant's land and these risks, I think, are accentuated by the fact that the plaintiff is putting as the basis for seeking an injunction pending trial the prospect of building activities and the use by the plaintiff and its contractors and licensees of this carriageway for building purposes.
10 Now it is notorious that builders and sub-contractors tend to be careless in their use of carriageways for building purposes and this is not a situation which weighs in favour of the plaintiff's present application. I am also influenced by the fact that although there is affidavit material on behalf of the plaintiff which indicates an intent to start re-building on the plaintiff's land immediately, that there are also indications to the contrary in the material that the plaintiff is unlikely to redevelop its land for a considerable time.
11 I think that the balance of convenience suggests that there ought not to be a situation where the plaintiff can have use of this carriageway protected by a court order pending trial, given the dangers which appear from the defendant's material. That conclusion leads to a vacuum and it may be that if the plaintiff seeks, nevertheless, in the absence of any order one way or the other to use this carriageway that the defendant may have to seek other appropriate relief but it is not for me, at this stage, to speculate further upon that.
12 For present purposes I am not satisfied that it is just and convenient that the plaintiff have a continuation of the injunction and the plaintiff's summons will be dismissed.
13 MR STAFFORD: Your Honour, just before the dismissal I thought I would just perhaps make this submission. We are obviously keen to avoid a hiatus. You did, as I understand it, base the decision on the risk to the propping. The evidence is that that propping can be fixed for approximately $3000 as opposed to $50,000 cost that we would suffer. Now we would certainly be prepared to pay for the reasonable costs of the readjustment to the propping pending the resolution of the matter - - -
14 HIS HONOUR: Well, I am not going to get involved in that, Mr Stafford.
15 I should add, as you have raised it that I did not specifically refer in my reasons to the evidence about the costs of removing the propping but I am far from persuaded that that assertion in the affidavit material is correct. I would need a lot more evidence to be persuaded of that. I will not make any other orders and it is a matter for the parties if they can reach some arrangement which I doubt, given the evidence, given their attitude.
16 But I will order in addition to dismissing the application for an injunction that, there be a speedy trial of this proceeding. I think it is in the interests of both parties to have a speedy trial and I will invite the parties to discuss directions as to defences and any other affidavits and so forth. It could be a trial on affidavit.
17 MR STAFFORD: I was about to suggest that, Your Honour. It seems suitable for a trial by affidavit.
18 HIS HONOUR: But I would invite the parties to confer to see if they can agree on some orders and if you can reach agreement the orders can be submitted to my associate, if you cannot you can come back tomorrow and I will work out some directions.
19 What about costs, Mr Stafford?
20 MR STAFFORD: Your Honour, my submission would be that they should be reserved.
21 HIS HONOUR: I think that you have lost the application and I think that the plaintiff should be ordered to pay the defendant's costs of this application including reserved costs. You have not only lost the application. It is quite clear that the statement of claim was wrong and any hope you had at all was really based on a factual situation which is not even pleaded, or at least is not pleaded properly. But in any event, I think costs should follow the event and I will make such an order.
22 MR STAFFORD: As Your Honour determines.
23 MR ISLES: We will submit a minute with appropriate directions.
24 HIS HONOUR: If you can agree on consent directions my associate will be available to take that order.
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