Tolcon v Czwerenczuk

[2012] WASC 106

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   TOLCON -v- CZWERENCZUK [2012] WASC 106

CORAM:   MASTER SANDERSON

HEARD:   12 MARCH 2012

DELIVERED          :   12 MARCH 2012

PUBLISHED           :  29 MARCH 2012

FILE NO/S:   CIV 3282 of 2011

BETWEEN:   MATHEW JOHN TOLCON

Applicant

AND

BASIL CZWERENCZUK
MARK CZWERENCZUK
Respondents

Catchwords:

Property law - Claim for easement - Turns on own facts

Legislation:

Property Law Act 1969 (WA), s 34(1)(a)

Result:

Originating summons dismissed

Category:    B

Representation:

Counsel:

Applicant:     Mr B F Stokes

Respondents                 :     Mr B E S Lauri

Solicitors:

Applicant:     Brians Solicitors

Respondents                 :     BES Lauri

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

Nil

1. MASTER SANDERSON:  By originating motion filed 28 November 2011 the applicant sought orders in relation to a bore and associated reticulation infrastructure which was located on the respondents' property but had in times past been shared between the parties.  At the conclusion of the hearing I dismissed the originating summons.  I indicated I would publish reasons for my decision.  These are those reasons.

2. There was no substantial dispute between the parties as to the facts.  The applicant and the respondents are respectively registered proprietors of adjoining properties in the Perth suburb of Alexander Heights.  Two previous registered proprietors of the properties had entered into an agreement, the principal terms of which were as follows:

   1.a bore would be sunk on a common boundary between the two adjoining properties;

   2.the three‑phase power supply necessary for the submersible pump would be wired through the property now owned by the respondents;

   3.each party would contribute equally to any maintenance and repairs; and

   4.the owner of the applicant's lot would pay a sum for the cost of power to drive the pump for watering the gardens.

3. It would appear this arrangement operated to the satisfaction of all parties for a number of years.  It was never reduced to writing and nothing appeared on either title to indicate the existence of any such agreement.

4. The applicant became the registered proprietor of his property in October 1997.  He purchased his interest from his father who had been one of the original parties to the agreement.  Clearly, the applicant was aware of the agreement and its terms.  The first‑named respondent became the registered proprietor of the adjoining property in August 2009.  The applicant accepts when he purchased the property the first‑named respondent was not aware of the agreement.  The first‑named respondent says that in his affidavit in opposition to the application.  He was cross‑examined on this evidence and was unshaken.  The second‑named respondent is the son of the first‑named respondent who took an interest in his father's property some time after its acquisition.

5. It was against this factual background the applicant sought orders effectively seeking specific performance of the agreement.  It is hard to imagine any mandatory injunction to that effect being issued.  For instance, one of the orders sought was the respondents restore and maintain the flow of water from the said bore to the applicant's property via reticulation pipes and outlets necessary for the applicant to enjoy the use of such water.  Enforcing such an order would be almost impossible.  To that extent the application was misconceived.

6. Even more fundamentally it was not clear on what legal basis the application proceeded. It seemed from the way the case was framed the applicant alleged an easement or quasi‑easement but the agreement was not made in writing and therefore could not create an interest in the land. That flows from s 34(1)(a) of the Property Law Act 1969 (WA).

7. The way in which submissions filed on behalf of the applicant were framed suggested the applicant may have been claiming an easement by prescription. The creation of such an interest is not prevented by s 34(1)(a) of the Property Law Act.  But for such an easement to arise use of the subservient property must not be permissive.  Here the use made of the respondents' property was, until the parties fell out, permissive.  So no easement by prescription should arise.  It also appeared to be suggested on behalf of the applicant there was a restrictive covenant on the respondents' property which would be enforceable in equity against a subsequent purchaser of the land.  This argument too was bound to fail.  First, the present respondents had no notice of any covenant when they purchased the property.  Secondly, the covenant is not, in substance, negative.  A covenant requiring the expenditure of money or the doing of some act can never be made to run with the land.  This argument was doomed to fail.

8. In my view, this is an application which ought never have been brought.  Properly advised, the applicant would have realised, however much he may have felt aggrieved, there was no remedy available to him at law to solve his problems.  Against that background, I will hear the parties as to costs.