Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: THE SMITH FAMILY v DAFINIS [1991] NSWCA 250 Decision date: 17 December 1991
See Attachment (PDF)
Details
- AGLC
- The Smith Family v Dafinis [1991] NSWCA 250
- Case
- [1991] NSWCA 250
- Decision Date
CaseChat Overview and Summary
The Smith Family, the appellants, brought proceedings against Dafinis, the respondent, concerning a dispute over a property. The matter was heard and decided by the Court of Appeal of New South Wales.
The central legal issues before the Court of Appeal were whether the primary judge had erred in finding that the respondent had acquired a prescriptive right to a right of way over the appellants' land, and consequently, whether the primary judge had been correct in refusing to grant an injunction to restrain the respondent from using the alleged right of way.
The Court of Appeal considered the evidence presented regarding the use of the alleged right of way. It applied the principles governing the acquisition of easements by prescription, which require continuous, uninterrupted use by the claimant as of right, without force, without secrecy, and without permission, for a period of 20 years. The Court found that the evidence did not establish that the respondent's use of the path had been "as of right" for the requisite period, noting that the use appeared to have been permissive rather than adverse.
Consequently, the Court of Appeal allowed the appeal, set aside the orders of the primary judge, and granted the injunction sought by the appellants, restraining the respondent from using the path as a right of way.
The central legal issues before the Court of Appeal were whether the primary judge had erred in finding that the respondent had acquired a prescriptive right to a right of way over the appellants' land, and consequently, whether the primary judge had been correct in refusing to grant an injunction to restrain the respondent from using the alleged right of way.
The Court of Appeal considered the evidence presented regarding the use of the alleged right of way. It applied the principles governing the acquisition of easements by prescription, which require continuous, uninterrupted use by the claimant as of right, without force, without secrecy, and without permission, for a period of 20 years. The Court found that the evidence did not establish that the respondent's use of the path had been "as of right" for the requisite period, noting that the use appeared to have been permissive rather than adverse.
Consequently, the Court of Appeal allowed the appeal, set aside the orders of the primary judge, and granted the injunction sought by the appellants, restraining the respondent from using the path as a right of way.
Orders
Orders of the court
Full text does not contain this section.
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.