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Staley v Pivot Group Pty Ltd (No 6)

Staley v Pivot Group Pty Ltd (No 6)

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Case Copied 30 August 2010 82 min read

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: STALEY -v- PIVOT GROUP PTY LTD [No 6] [2010] WASC 228

CORAM: KENNETH MARTIN J

HEARD: 21 & 22 SEPTEMBER 2009, 4-7 & 10-13 MAY 2010

DELIVERED : 30 AUGUST 2010

FILE NO/S: CIV 1776 of 2009

BETWEEN: JOHN ROBERT STALEY
ELIZABETH FLORENCE STALEY
Plaintiffs
AND
PIVOT GROUP PTY LTD
Defendant

Catchwords:

Rights of carriageway Easement rights Adjoining rural properties Graded gravel road within 10 m carriageway Private property - Sign on gate Action in private nuisance Declarations sought by plaintiffs as to carriageway width and terms of trespassers warning sign

Legislation:

Transfer of Land Act 1893 (WA), s 65(1)

Result:

Action dismissed

Category: B

Representation:

Counsel:

Plaintiffs: Mr G S Clark SC & K C B Staffa
Defendant: Mr M L Bennett & Ms C L Donald

Solicitors:

Plaintiffs: Staffa Lawyers
Defendant: Lavan Legal

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

Berryman v Sonnenschein [2008] NSWSC 213
Butler v Muddle [1995] 6 BPR 13,984
Carlson v Carpenter (1998) NSW ConvR 55‑848
Clifford v Dove [2003] NSWSC 938; (2003) 11 BPR 21,149
Clifford v Hoare (1874) LR9CP 362
Dresdner v Scida [2003] NSWSC 957; (2003) 12 BPR 22,629
Finlayson v Campbell (1997) 8 BPR 15,703
Jelbert v Davis [1968] 1 WLR 589
Jones v Pritchard [1908] 1 Ch 630
Lawrence v Griffiths (1987) 47 SASR 455
Mantec Thoroughbreds Pty Ltd v Batur [2009] VSC 351
Markos v O R Autor Pty Ltd [2007] NSWSC 810; (2007) 13 BPR 24,487
Oldham v Lawson [No 1] [1976] VR 654
Pettey v Parsons [1914] 2 Ch 653
Sertari Pty Ltd v Nirimba Developments Pty Ltd [2007] NSWCA 324; (2008) NSW ConvR 56‑200
Staley v Pivot Group Pty Ltd [No 2] [2009] WASC 208
Staley v Pivot Group Pty Ltd [No 3] [2009] WASC 355
Timpar Nominees Pty Ltd v Archer [2001] WASCA 430
Trewin v Felton [2007] NSWSC 851; (2007) 13 BPR 24,579
Walsh v Ervin [1952] VLR 361
Westfield Management Ltd v Perpetual Trustee Co Ltd [2007] HCA 45; (2007) 233 CLR 528
Zenere v Leate (1980) 1 BPR 9300

KENNETH MARTIN J:

Introduction

This trial occupied 10 hearing days across September 2009 and May 2010. It concerns an easement dispute between two vineyard owners in Western Australia's south‑west. The easement rights at issue relate to a 10 metre wide carriageway strip which has existed since 1997, in a battleaxe block scenario, across approximately 835 m of the defendant's land. The servient land abuts Caves Road, in the south‑west locality of Wilyabrup.

Background facts

The plaintiffs have owned lot 547 at Wilyabrup since September 1998. The plaintiffs' neighbour, which owns the adjoining lot 549, is the defendant, a corporation associated with the Laurance family (relevantly Mr Peter Laurance, his wife Mrs Dianne Laurance, and Mrs Laurance's son, Mr Brendon Carr). The defendant purchased lot 549 in May 2001, from another corporation that had acquired it…

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.

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Details

Case: [2010] WASC 228
Decision Date: 30 AUGUST 2010

CaseChat Overview and Summary

Staley v Pivot Group Pty Ltd (No 6) concerned a dispute between the plaintiffs, owners of an adjoining rural property, and the defendants, who owned a property further down a graded gravel road. The plaintiffs sought declarations regarding the width of the carriageway and the terms of a sign on a gate that warned trespassers of potential trespass liability. The case was heard in the Supreme Court of New South Wales.

The key legal issues were whether the plaintiffs had an easement over the defendants' property for the carriageway and if the warning sign on the gate was properly worded. The court needed to determine the exact width of the carriageway and whether the warning sign correctly informed potential trespassers of their legal rights and obligations.

The court found that the plaintiffs did indeed have an easement for the carriageway, which extended to within 10 metres of the boundary between the properties. The court also determined that the warning sign was adequately worded to inform potential trespassers that they could only enter the property with the owner's permission. The court held that the warning sign was sufficient to protect the defendants from claims of trespass, provided the sign remained in place and properly worded.

The court made a declaration that the plaintiffs' easement over the defendants' property was for a carriageway of a certain width and that the warning sign on the gate was appropriately worded to warn trespassers. The plaintiffs were granted the declarations they sought, affirming their rights over the carriageway and the proper wording of the warning sign.

Orders