Studholme v Rawson

Case [2020] NSWCA 76


Court of Appeal


Supreme Court


New South Wales

  • Summary available
Medium Neutral Citation: Studholme v Rawson [2020] NSWCA 76
Hearing dates: 30 March 2020
Date of orders: 24 April 2020
Decision date: 24 April 2020
Before: Bell P at [1];
Basten JA at [30];
Gleeson JA at [200]
Decision:

(1)   Allow the appeal and set aside orders 1-10 made in the Equity Division on 30 January 2019 and order 1 made on 3 October 2019.
(2)   Order that the defendant pay the plaintiffs’ costs in the Equity Division incurred between 4 May and 17 May 2017.
(3)   Subject to order (2), order that the plaintiffs pay the defendant’s costs of the trial in the Equity Division.
(4) Remit the proceeding to the Equity Division for the purpose of determining the appropriate terms and conditions of the grant of an easement for a right of carriage way for the purposes of Sch 8, Pt 1 of the Conveyancing Act 1919 in favour of the plaintiffs.
(5)   Order that the respondents pay the appellant’s costs in this Court.
(6) Grant the respondents a certificate under the Suitors’ Fund Act 1951 (NSW).

Catchwords:

APPEAL – grounds – order of consideration – bias – effect on trial – need to address first

 

BIAS – prejudgment – trial judge expressed views based on filed evidence – views expressed to counsel in chambers – reliance on statements in judgment – reliance on overriding purpose in Civil Procedure Act 2005 (NSW), Pt 6 – acquiescence or waiver – statements revealing legal error, not prejudgment

 

REAL PROPERTY – easements – compensation – assessment of compensation for owner of servient tenement – application of valuation principles in determining compensation payable – need to determine terms and conditions of easement before assessing compensation – Conveyancing Act 1919 (NSW), s 88K(4)

 

REAL PROPERTY – easements – whether reasonably necessary – terms and conditions of easement – need to determine when deciding whether easement reasonably necessary – drainage works – joint report of expert engineers rejected – need for remittal – Conveyancing Act 1919 (NSW), s 88K(3)

 

COSTS – easement application – statutory entitlement of land owner – objection based on joint report of experts – whether conduct of land owner unreasonable – basis for departure from statutory entitlement – Conveyancing Act 1919 (NSW), s 88K(5)

  PRACTICE AND PROCEDURE – open justice – holding “informal directions hearings” in chambers – no access for public – absence of parties – no record of conversation – risk of participants becoming witnesses – practice decried
Legislation Cited:

Civil Procedure Act 2005 (NSW), ss 56, 60, 98; Pt 6
Conveyancing Act 1919 (NSW), ss 88, 88K; Sch 8, Pt 1
Court Suppression and Non-publication Orders Act 2010 (NSW), s 6
Evidence Act 1995 (NSW), s 131
Judiciary Act 1903 (Cth), ss 16, 17, 34, 69, 76, 77RR
Supreme Court Act 1970 (NSW), s 11
Supreme Court Act 1986 (Vic), s 4

Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW), r 101
Uniform Civil Procedure Rules 2005…

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AGLC
Studholme v Rawson [2020] NSWCA 76
Case
[2020] NSWCA 76
Decision Date

CaseChat Overview and Summary

The appeal in *Studholme v Rawson* concerned an application for an easement under section 88K of the *Conveyancing Act 1919* (NSW). The plaintiffs sought an easement for a right of carriage way over land owned by the defendant. The primary judge in the Equity Division granted the easement and made orders regarding compensation and costs. The defendant appealed these orders.

The Court of Appeal was required to determine several issues, including whether the primary judge had demonstrated bias by expressing views on the evidence in chambers, and whether the primary judge had erred in assessing compensation for the servient tenement owner and in determining the terms and conditions of the easement. The court also considered whether the primary judge had correctly determined the reasonableness of the proposed easement and whether the costs orders made were appropriate, particularly in light of the defendant's objection to the easement. Finally, the court addressed the propriety of the primary judge holding informal directions hearings in chambers, which were not open to the public or recorded.

The Court of Appeal found that the primary judge's remarks, while revealing a strong view based on the filed evidence, did not amount to prejudgment or bias. The court reasoned that the judge's reliance on the overriding purpose of the *Civil Procedure Act 2005* (NSW) and the fact that the statements were made in chambers to counsel, rather than in open court, did not vitiate the proceedings. However, the court held that the primary judge had erred in determining the terms and conditions of the easement before assessing compensation, and that the reasonableness of the easement could not be properly determined without first establishing these terms. The court also criticised the practice of holding private, unrecorded directions hearings, deeming it contrary to the principle of open justice.

Consequently, the Court of Appeal allowed the appeal, setting aside the primary judge's orders. The matter was remitted to the Equity Division for the determination of the appropriate terms and conditions of the easement, after which compensation and costs would be reassessed. The court made specific orders regarding the costs of the proceedings in both the Equity Division and the Court of Appeal, and granted the respondents a certificate under the *Suitors’ Fund Act 1951* (NSW).

Orders

Orders of the court

(1) Allow the appeal and set aside orders 1-10 made in the Equity Division on 30 January 2019 and order 1 made on 3 October 2019.

(2) Order that the defendant pay the plaintiffs’ costs in the Equity Division incurred between 4 May and 17 May 2017.

(3) Subject to order (2), order that the plaintiffs pay the defendant’s costs of the trial in the Equity Division.

(4) Remit the proceeding to the Equity Division for the purpose of determining the appropriate terms and conditions of the grant of an easement for a right of carriage way for the purposes of Sch 8, Pt 1 of the Conveyancing Act 1919 in favour of the plaintiffs.

(5) Order that the respondents pay the appellant’s costs in this Court.

(6) Grant the respondents a certificate under the Suitors’ Fund Act 1951 (NSW).

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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