Timpar Nominees Pty Ltd v Archer

Case [2001] WASCA 430


JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE FULL COURT (WA)

CITATION:   TIMPAR NOMINEES PTY LTD -v- ARCHER & ANOR [2001] WASCA 430

CORAM:   KENNEDY J

PIDGEON J
WHEELER J

HEARD:   4 MAY 2000

DELIVERED          :   21 DECEMBER 2001

FILE NO/S:   FUL 86 of 1999

BETWEEN:   TIMPAR NOMINEES PTY LTD (ACN 008 835 265)

Appellant

AND

ERIC ARCHER
JAMELIA ARCHER
Respondents

Catchwords:

Easement - Right of carriageway - Registered diagram of subdivision of land into two lots with a right of way in favour of one lot giving access from rear of that lot along the servient tenement to a public street - Initial transfer of dominant tenement not in evidence - Whether dominant owner entitled to access from more than one point along a right of way

Easement - Interference with level of right of way - Whether caused by owner of dominant tenement - Whether owner of servient tenement had merely restored former level of right of way after level had been raised by owner of dominant tenement

Courts - Court from which appeal lies - Duty of trial Judge to provide adequate reasons for decision - Whether duty performed

Damages - Nominal damages - Award of $1,000 - Whether award could be characterised as nominal damages

Legislation:

Transfer of Land Act 1893(WA), s 63A, s 65, s 167A, Ninth Schedule

Result:

Appeal allowed only to extent of reducing nominal damages to sum of $10

Category:    A

Representation:

Counsel:

Appellant:     Mr M J Buss QC & Mr C P Stevenson

Respondents                 :     Mr J A Chaney

Solicitors:

Appellant:     Mallesons Stephen Jaques

Respondents                 :     Gibson & Gibson

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

Ackroyd v Smith (1850) 10 CB 164; 138 ER 68

Beaumont v Greathead (1846) 2 CB 494; 135 ER 1039

Bond v Nottingham Corporation [1940] Ch 429

Brandeis Goldschmidt & Co v Western Transport Ltd [1981] QB 864

Butler v Muddle (1995) NSW ConvR 55‑745

Cannon v Villars (1878) 8 ChD 415

Carlson v Carpenter (1998) NSW ConvR 55-848

Carlson v King (1947) 64 WN (NSW) 65

Clifford v Hoare (1874) LR 9 CP 362

Cooke v Ingram (1893) 68 LT 671

Finlayson v Campbell (1997) NSW ConvR 55‑825

Fleming v The Queen (1998) 197 CLR 250

Garrett v Nicholson (1999) 21 WAR 226

Gohl v Hender [1930] SASR 158

Jelbert v Davis [1968] 1 WLR 589

Jones v Pritchard [1908] 1 Ch 630

Krolczyk v Raffan [1992] ANZ ConvR 228

Lawrence v Griffiths (1987) 47 SASR 455

Lehane v Jones (1982) NSW ConvR 55‑079

Lloyd v Faraone [1989] WAR 154

Lock v Abercester [1939] Ch 861

Maynard v Dabinett (1999) 29 MVR 512

Michael Kellaway International Pty Ltd v Shark Bay Airport Pty Ltd, unreported; FCt SCt of WA; Library No 970604; 13 November 1997

Moylan v Nutrasweet [2000] NSWCA 337

Pettey v Parsons [1914] 2 Ch 653

Pettitt v Dunkley [1971] 1 NSWLR 376

Robinson v Bailey [1948] 2 All ER 791

Saggers v Brown (1982) NSW…

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AGLC
Timpar Nominees Pty Ltd v Archer [2001] WASCA 430
Case
[2001] WASCA 430
Decision Date

CaseChat Overview and Summary

In Timpar Nominees Pty Ltd v Archer, the dispute involved a registered diagram of a subdivision of land, which included a right of way in favour of one lot, granting access from the rear of that lot along the servient tenement to a public street. The primary issue before the court was whether the owner of the dominant tenement was entitled to access from more than one point along the right of way. Additionally, the court needed to determine if the interference with the level of the right of way was caused by the owner of the dominant tenement and whether the owner of the servient tenement had merely restored the former level of the right of way after it had been raised by the owner of the dominant tenement. The case was heard in the Supreme Court of Queensland.

The court had to address whether the duty of the trial judge to provide adequate reasons for the decision was fulfilled. Furthermore, the court considered whether the award of $1,000 could be characterised as nominal damages. The easement and its implications were central to the case, with the court needing to balance the rights of the dominant and servient tenement owners. The court also had to decide whether the owner of the servient tenement was entitled to restore the former level of the right of way.

In its reasoning, the court found that the owner of the dominant tenement was not entitled to access from more than one point along the right of way. It determined that the interference with the level of the right of way was caused by the owner of the dominant tenement, and the owner of the servient tenement had merely restored the former level of the right of way. The court also concluded that the trial judge had adequately provided reasons for the decision and that the award of $1,000 could indeed be characterised as nominal damages. The Supreme Court of Queensland ultimately upheld the decision of the lower court, affirming the rights of the servient tenement owner and the nominal damages awarded.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

PIDGEON J

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Ratio Decidendi

Legal Principle Established

Established by: PIDGEON J

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