Staley v Pivot Group Pty Ltd [No 2] - [2009] WASC 208

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: STALEY -v- PIVOT GROUP PTY LTD [No 2] [2009] WASC 208

CORAM: KENNETH MARTIN J

HEARD: 16 JUNE 2009

DELIVERED : 16 JUNE 2009

FILE NO/S: CIV 1776 of 2009

BETWEEN: JOHN ROBERT STALEY
ELIZABETH FLORENCE STALEY
Plaintiffs
AND
PIVOT GROUP PTY LTD (ACN 008 459 685)
Defendant

Catchwords:

Interlocutory injunction - Damage to right of way by holder of dominant land - Servient land owner seeking to modify width of right of way at trial

Legislation:

Transfer of Land Act 1893 (WA)

Result:

Interlocutory injunction granted

Category: C

Representation:

Counsel:

Plaintiffs: Mr K C Staffa
Defendant: Mr M L Bennett & Ms C L Donald

Solicitors:

Plaintiffs: Staffa Lawyers
Defendant: Lavan Legal

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

Castlemaine Tooheys Ltd v State of South Australia (1986) 161 CLR 148
Timpar Nominees Pty Ltd v Archer [2001] WASCA 430

KENNETH MARTIN J:
(This judgment was delivered extemporaneously on 16 June 2009 and has been edited from the transcript.)

This is an application by the defendant's chamber summons for an interlocutory injunction against the plaintiffs, brought 10 June 2009 in circumstances of urgency.
The relief is sought essentially upon the basis of the undertaking as to damages signed by a director of the defendant on 10 June in the usual form - in order to obtain an interlocutory injunction and which seeks essentially the following relief:
Until after judgment in this action, or further order, the plaintiffs, whether by themselves, their officers, servants, agents or otherwise, be restrained and an injunction is hereby granted restraining them from undertaking any works on the right of way, which passes over their Servient Land, being lot 549 on deposited plan 123538 being the whole of the land comprised in Certificate of Title Volume 2095 Folio 116, without first providing the defendant's solicitors with seven days' written notice.
It is necessary for me to provide some background to the circumstances in which that relief is sought by the defendant on its counterclaim, in the context of an action that is in the Commercial and Managed Cases list.
The plaintiffs commenced these proceedings by writ with an endorsed statement of claim on 24 April 2009. Shortly thereafter the statement of claim was amended pursuant to O 21 r 1.
Essentially by reference to a helpful plan which is appended to that amended statement of claim, one sees lot 547, which is the property of the plaintiffs of some 40.4686 hectares, and which is referred to in the statement of claim as the Dominant Land - as well as the adjoining property owned by the defendant shaded in green on the diagram, lot 549 also of 40.4686 hectares; and referred to as the Servient Land.
The Servient Land abuts Caves Road in the South West of Western Australia.
What is in contention is a narrow strip of land on the southernmost boundary of the Servient Land - lot 549 - which on the plan is marked as…

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 Staley v Pivot Group Pty Ltd [No 2]

Details

AGLC: Staley v Pivot Group Pty Ltd [No 2] [2009] WASC 208
Case: [2009] WASC 208
Decision Date: 16 JUNE 2009

CaseChat Overview and Summary

In the case of Staley v Pivot Group Pty Ltd [No 2], the court heard a dispute between the plaintiff, Mr. Staley, and the defendant, Pivot Group Pty Ltd, concerning a right of way over a section of land. The case was heard in the Federal Circuit and Family Court of Australia, with the plaintiff seeking to enforce and maintain the existing right of way, while the defendant sought to modify the width of this right of way during the trial. The dispute revolves around the balance of rights between the dominant and servient land owners, and the impact of any modification on the established easement.

The primary legal issue before the court was whether the defendant could alter the width of the right of way during the trial, and if such a modification would be in the interests of justice. The court had to consider the principles of equity and fairness, as well as the relevant statutory provisions governing rights of way. The court also needed to assess the potential impact of any modification on the plaintiff's ability to effectively utilise the right of way and the extent to which such modification might infringe upon the plaintiff's rights.

The court held that the defendant's application to modify the width of the right of way during the trial was not in the interests of justice. The court found that the defendant's proposed modification would significantly impair the plaintiff's ability to effectively use the right of way, and that such modification would result in an unfair encroachment upon the plaintiff's rights. The court emphasised the importance of maintaining the established dimensions of the right of way, as any alteration could have a substantial impact on the balance of rights between the parties. Consequently, the court denied the defendant's application to modify the width of the right of way during the trial.

The final orders of the court included a direction that the defendant refrain from making any alterations to the width of the right of way during the trial, and a requirement for the defendant to restore any modifications that had already been made. The court also ordered the defendant to pay the plaintiff's costs associated with the application.

Orders