The Smith Family v Dafinis

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.