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…

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 Timpar Nominees Pty Ltd v Archer

Details

AGLC: Timpar Nominees Pty Ltd v Archer [2001] WASCA 430
Case: [2001] WASCA 430
Decision Date: 21 DECEMBER 2001

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