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Steer v Hemmings

Steer v Hemmings

Case [2010] QSC 460 7 December 2010

Easements & Covenants

Adverse Possession

Statutory Interpretation

Specific Performance

Property Law

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SUPREME COURT OF QUEENSLAND

CITATION:

Steer & Anor v Hemmings & Anor [2010] QSC 460

PARTIES:

HERBERT ALFRED ERNEST STEER and LYNETTE ELIZABETH STEER
(applicants)
v
CHARLES EDWARD HEMMINGS and MIRTHA HELEN HEMMINGS

(respondents)

FILE NO/S:

SC No 2837 of 2009

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

7 December 2010

DELIVERED AT:

Brisbane

HEARING DATE:

24 August 2010; 2 February 2011

JUDGE:

Peter Lyons J

ORDER:

1.         The Applicants are granted a Statutory Right of User over the Respondents’ land in accordance with the Terms annexed to the order placed with the file.

2.         The Statutory Right of User shall be registered with the Registrar of Titles and the Applicants and the Respondents shall do all things necessary to enable the Statutory Right of User to be registered including, but not limited to:

(a)         Signing any necessary documents required by the Registrar of Titles within 7 days of such documents being submitted for signature; and

(b)        Producing any Certificate of Title to the Registrar of Titles within 7 days of being requested to do so.

3.         The Applicants, at their expense, cause to be prepared, and lodged, any documents required by the Registrar of Titles to register the Statutory Right of User.

4.         The Applicants arrange for any Plan required by the Registrar of Titles to be prepared and lodged at their expense and the Respondents access to their property necessary for the purpose of preparation of such a Plan.

5.         In the event that any party fails to perform any act, including sign any documents required by this Order, the Registrar of the Court is appointed to perform the act and/or sign the document in place of the party.

6.         The Originating Application dated 17 May 2009 and the further relief sought in the Statement of Claim be otherwise dismissed.

7. The Respondents pay two-thirds of the Applicants’ standard costs of and incidental to these proceedings to be agreed or, failing agreement, to be assessed less the sum of $5,000.00 hereby assessed as compensation payable pursuant to s 180(4)(a) of the Property Law Act 1974 (Qld).

8.         Liberty to apply.

CATCHWORDS:

REAL PROPERTY — EASEMENTS — PARTICULAR EASEMENTS AND RIGHTS — RIGHTS OF WAY –—CREATION — where the applicants and respondents are neighbours — where the applicants’ house is built very close to the boundary between the applicants’ and respondents’ properties — where this is a common feature of the houses in the area — where it is difficult for the applicants to carry out maintenance on their property without entering onto the respondents’ property — where the applicants seek orders under s 180 of the Property Law Act 1974 (Qld) imposing a statutory right of user over the respondent’s land — whether a statutory right of user should be granted — whether the respondents’ should be compensated for the creation of a statutory right of user over their land

REAL PROPERTY — BOUNDARIES OF LAND AND FENCING — ENCROACHMENT OF BUILDINGS AND PARTY WALLS — OTHER MATTERS…

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 Steer v Hemmings

Details

AGLC: Steer v Hemmings [2010] QSC 460
Case: [2010] QSC 460
Decision Date: 7 December 2010

CaseChat Overview and Summary

The case of Steer v Hemmings involves neighbouring property owners, the applicants and the respondents, with the applicants’ house built very close to the boundary between their properties. The applicants sought to establish a statutory right of user over the respondents’ land to facilitate maintenance work on their property. This case was heard by the Queensland Supreme Court. The applicants argued that the necessity of accessing the respondents’ land for maintenance purposes justified the imposition of a statutory right of user over the respondents’ property.

The primary legal issue before the court was whether a statutory right of user should be granted to the applicants under section 180 of the Property Law Act 1974 (Qld). Additionally, the court had to determine if the respondents should be compensated for the creation of the statutory right of user over their land. The applicants contended that the close proximity of their house to the boundary and the common architectural features of the area justified the need for such access. The respondents opposed the application, arguing that the applicants should bear the costs of any necessary alterations to their property to avoid encroaching on the respondents’ land.

The court found in favour of the applicants, granting them a statutory right of user over the respondents’ land. The court held that the necessity of accessing the respondents’ land for maintenance purposes outweighed the respondents’ objections. The court further ruled that the respondents were entitled to compensation for the creation of the statutory right of user over their land, setting the amount at two-thirds of the applicants’ costs. The court also dismissed the applicants’ request for the removal of part of the respondents’ brick wall that encroached onto their land, finding that such an order was not warranted.

In summary, the court granted the applicants a statutory right of user over the respondents’ land, requiring the applicants to bear the costs of necessary documentation and plans for registration. The court appointed the Registrar of the Court to perform any required acts if either party failed to comply with the order. The respondents were ordered to pay two-thirds of the applicants’ costs, with an assessed compensation of $5,000.00 payable to the respondents. The applicants’ request for the removal of the respondents’ brick wall was dismissed.

Orders

Orders of the court

1. The Applicants are granted a Statutory Right of User over the Respondents’ land in accordance with the Terms annexed to the order placed with the file.

2. The Statutory Right of User shall be registered with the Registrar of Titles and the Applicants and the Respondents shall do all things necessary to enable the Statutory Right of User to be registered including, but not limited to:

(a) Signing any necessary documents required by the Registrar of Titles within 7 days of such documents being submitted for signature; and

(b) Producing any Certificate of Title to the Registrar of Titles within 7 days of being requested to do so.

3. The Applicants, at their expense, cause to be prepared, and lodged, any documents required by the Registrar of Titles to register the Statutory Right of User.

4. The Applicants arrange for any Plan required by the Registrar of Titles to be prepared and lodged at their expense and the Respondents access to their property necessary for the purpose of preparation of such a Plan.

5. In the event that any party fails to perform any act, including sign any documents required by this Order, the Registrar of the Court is appointed to perform the act and/or sign the document in place of the party.

6. The Originating Application dated 17 May 2009 and the further relief sought in the Statement of Claim be otherwise dismissed.

7. The Respondents pay two-thirds of the Applicants’ standard costs of and incidental to these proceedings to be agreed or, failing agreement, to be assessed less the sum of $5,000.00 hereby assessed as compensation payable pursuant to s 180(4)(a) of the Property Law Act 1974 (Qld).

8. Liberty to apply.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Steer v Hemmings [2010] QSC 460

Most Recent Citation

Peulen v Agius [2015] QSC 137

Cases citing this decision · 1 of 1 shown

Peulen v Agius
[2015] QSC 137 Para 1

…se consequences.[17] [17] Re Hodgskin (Unreported, Queensland Supreme Court, Wilson J, 20 September 1999), [21]; Steer and Anor v Hemmings and Anor [2010] QSC 460, [60]; Tran and Anor v Cowan and Ors [2006] QSC 136, [45].…

View all 1 citing cases →

Cases cited in this decision · 11 of 11 shown

Etwell v Newcastle City Council
[2006] NSWSC 1165

…ty Law Act 1974 (Qld), s 180, s 184, s 185 Etwell v Newcastle City Council (2006) 151 LGERA 64; [2006] NSWSC 1165, cited Ex parte Edward Street Properties Pty Ltd [1977] Qd R 86 Hanny v Lewis (1998) 9 BPR 16,205, distinguished Nelungaloo Pty Ltd v Commonwealth (1948) 75 CLR 495; [1947] HCA 58, applied Lang Parade Pt…
Tran & Anor v Cowan & Ors
[2006] QSC 136 Para 1

…ser would not cause any loss to the owners of the servient tenement. [17]See s 180(4)(a) of the PLA. [18](2006) 151 LGERA 64; see at [38]-[41]. [19][2006] QSC 136: see [46]-[49].…
Pacific Coast Investments Pty Ltd v Cowlishaw
[2005] QSC 259 Para 1

…out that use effectively, the imposition of a statutory right of user is reasonably necessary. [11]See Pacific Coast Investments Pty Ltd v Cowlishaw [2005] QSC 259 [15], where Philip McMurdo J has collected a number of the authorities.…
Lang Parade Pty Ltd v Peluso
[2005] QSC 112

…(1948) 75 CLR 495; [1947] HCA 58, applied Lang Parade Pty Ltd v Peluso & Ors [2006] 1 Qd R 42; [2005] QSC 112, applied Pacific Coast Investments Pty Ltd v Cowlishaw [2005] QSC 259, cited Re Hodgkin unreported, Supreme Court of Queensland, No 2985 of 1999, considered Re Seaforth Land Sales Pty Ltd’s Land [1976] Q…
Woodland v Manly Municipal Council
[2003] NSWSC 524

…19,143 at 19,148 [14] per Windeyer J; Debbula Pty Ltd v The Owners, Strata Plan 6964 [2004] NSW Conv R 56-073 at 58,964-5 [19]-[20] per Macready M; Woodland v Manly Municipal Council (2003) 127 LGERA 120 at 124-6 [8]-[11] per Hamilton J.…
Blulock Pty Ltd v Majic
[2001] NSWSC 1063

…skin [1999] Q Conv R 54-535 at 60,386 [18] per Wilson J; Katakouzinos v Roufir Pty Ltd (2000) 9 BPR 17,303 at 17,307 [38] per Hodgson CJ in Equity; Blulock Pty Ltd v Majic (2001) 10 BPR 19,143 at 19,148 [14] per Windeyer J; Debbula Pty Ltd v The Owners, Strata Plan 6964 [2004] NSW Conv R 56-073 at 58,964-5 [19]-[20] per Macready…
Westpac Banking Corporation v Tanzone Pty Ltd
[2000] NSWCA 25

…(1998) 43 NSWLR 504 at 508 per Hodgson CJ in Equity; Re Hodgskin [1999] Q Conv R 54-535 at 60,386 [18] per Wilson J; Katakouzinos v Roufir Pty Ltd (2000) 9 BPR 17,303 at 17,307 [38] per Hodgson CJ in Equity; Blulock Pty Ltd v Majic (2001) 10 BPR 19,143 at 19,148 [14] per Windeyer J; Debbula Pty Ltd v The Owners,…
Katakouzinos v Roufir Pty Ltd
[1999] NSWSC 1045

…ietors of Strata Plan No 16123 (1998) 43 NSWLR 504 at 508 per Hodgson CJ in Equity; Re Hodgskin [1999] Q Conv R 54-535 at 60,386 [18] per Wilson J; Katakouzinos v Roufir Pty Ltd (2000) 9 BPR 17,303 at 17,307 [38] per Hodgson CJ in Equity; Blulock Pty Ltd v Majic (2001) 10 BPR 19,143 at 19,148 [14] per Windeyer J; Debbula Pty Ltd v The…
Abignano v Wenkart
[1998] FCA 1468

…[2006] NSWSC 1165, cited Ex parte Edward Street Properties Pty Ltd [1977] Qd R 86 Hanny v Lewis (1998) 9 BPR 16,205, distinguished Nelungaloo Pty Ltd v Commonwealth (1948) 75 CLR 495; [1947] HCA 58, applied Lang Parade Pty Ltd v Peluso & Ors [2006] 1 Qd R 42; [2005] QSC 112, applied Pacific Coast Investments Pty L…
Nelungaloo Pty Ltd v The Commonwealth
[1947] HCA 58

…v Lewis (1998) 9 BPR 16,205, distinguished Nelungaloo Pty Ltd v Commonwealth (1948) 75 CLR 495; [1947] HCA 58, applied Lang Parade Pty Ltd v Peluso & Ors [2006] 1 Qd R 42; [2005] QSC 112, applied Pacific Coast Investments Pty Ltd v Cowlishaw [2005] QSC 259, cited Re Hodgkin unreported, Supreme Court of Queenslan…
Nelungaloo Pty Ltd v Commonwealth
[1948] HCA 51

…dward Street Properties Pty Ltd [1977] Qd R 86 Hanny v Lewis (1998) 9 BPR 16,205, distinguished Nelungaloo Pty Ltd v Commonwealth (1948) 75 CLR 495; [1947] HCA 58, applied Lang Parade Pty Ltd v Peluso & Ors [2006] 1 Qd R 42; [2005] QSC 112, applied Pacific Coast Investments Pty Ltd v Cowlishaw [2005] QSC 259, cited Re Hodgkin unreported,…

Legislation cited in this decision · 1

Property Law Act 1974 (Qld)
180 2 mentions

CITATION:	Steer & Anor v Hemmings & Anor [2010] QSC 460
PARTIES:	HERBERT ALFRED ERNEST STEER and LYNETTE ELIZABETH STEER (applicants) v CHARLES EDWARD HEMMINGS and MIRTHA HELEN HEMMINGS (respondents)
FILE NO/S:	SC No 2837 of 2009
DIVISION:	Trial Division
PROCEEDING:	Application
DELIVERED ON:	7 December 2010
DELIVERED AT:	Brisbane
HEARING DATE:	24 August 2010; 2 February 2011
JUDGE:	Peter Lyons J
ORDER:	1. The Applicants are granted a Statutory Right of User over the Respondents’ land in accordance with the Terms annexed to the order placed with the file. 2. The Statutory Right of User shall be registered with the Registrar of Titles and the Applicants and the Respondents shall do all things necessary to enable the Statutory Right of User to be registered including, but not limited to: (a) Signing any necessary documents required by the Registrar of Titles within 7 days of such documents being submitted for signature; and (b) Producing any Certificate of Title to the Registrar of Titles within 7 days of being requested to do so. 3. The Applicants, at their expense, cause to be prepared, and lodged, any documents required by the Registrar of Titles to register the Statutory Right of User. 4. The Applicants arrange for any Plan required by the Registrar of Titles to be prepared and lodged at their expense and the Respondents access to their property necessary for the purpose of preparation of such a Plan. 5. In the event that any party fails to perform any act, including sign any documents required by this Order, the Registrar of the Court is appointed to perform the act and/or sign the document in place of the party. 6. The Originating Application dated 17 May 2009 and the further relief sought in the Statement of Claim be otherwise dismissed. 7. The Respondents pay two-thirds of the Applicants’ standard costs of and incidental to these proceedings to be agreed or, failing agreement, to be assessed less the sum of $5,000.00 hereby assessed as compensation payable pursuant to s 180(4)(a) of the Property Law Act 1974 (Qld). 8. Liberty to apply.
CATCHWORDS:	REAL PROPERTY — EASEMENTS — PARTICULAR EASEMENTS AND RIGHTS — RIGHTS OF WAY –—CREATION — where the applicants and respondents are neighbours — where the applicants’ house is built very close to the boundary between the applicants’ and respondents’ properties — where this is a common feature of the houses in the area — where it is difficult for the applicants to carry out maintenance on their property without entering onto the respondents’ property — where the applicants seek orders under s 180 of the Property Law Act 1974 (Qld) imposing a statutory right of user over the respondent’s land — whether a statutory right of user should be granted — whether the respondents’ should be compensated for the creation of a statutory right of user over their land REAL PROPERTY — BOUNDARIES OF LAND AND FENCING — ENCROACHMENT OF BUILDINGS AND PARTY WALLS — OTHER MATTERS…