Trewin v Felton
[2007] NSWSC 1370
•26 October 2007
CITATION: Trewin v Felton [2007] NSWSC 1370 HEARING DATE(S): 26 October 2007 JURISDICTION: Equity Division JUDGMENT OF: Brereton J EX TEMPORE JUDGMENT DATE: 26 October 2007 DECISION: Time for compliance with order extended; Notice of Motion otherwise dismissed CATCHWORDS: REAL PROPERTY – Easements – obstruction – gateposts – width of aperture CASES CITED: Trewin v Felton [2007] NSWSC 851 PARTIES: Audrey Trewin (first plaintiff)
Stephen Albert Trewin (second plaintiff)
Graeme John Felton (defendant)FILE NUMBER(S): SC 3832/05 COUNSEL: In person - via audio link (plaintiffs)
Mr I Mescher (defendant)SOLICITORS: R I McBroom Solicitor (defendant)
IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
BRERETON J
Friday, 26 October 2007
3832/05 Audrey Trewin & Anor v Graeme John Felton
JUDGMENT (ex tempore)
1 HIS HONOUR: In the judgment that I delivered on 7 August 2007, [2007] NSWSC 851, I concluded that the concrete gateposts, because of their size and the manner in which they narrowed the carriageway, were an actionable obstruction, but that a gate hung at the same point on a much narrower gatepost would not be an obstruction, so long as the Trewins could open it whenever they wished to use the last five metres. I directed that the parties bring in short minutes to give effect to my judgment. Short minutes were duly brought in. The draft minute proposed an order that the defendant, by 19 October 2007, remove the gateposts or, alternatively, modify the gateposts “by making them much narrower”. In discussion with counsel that day, I indicated that I thought that provision was too vague and proposed that a dimension be fixed. Initially, as Mr Trewin points out, I proposed 3.7 metres, and after some discussion in Court, the parties apparently agreed on 3.6 metres, but on the basis that either would be able to make a further application to the Court to fix some other dimension. The order eventually made was that by 19 October Mr Felton remove the gateposts or modify them ”so as to allow an opening between them of not less than 3.6 metres or such other dimension as the Court may fix”. Liberty was reserved to apply inter alia “to fix some other dimension than 3.6 metres” for the purposes of that order.
2 By motion formally filed in Court today, but previously notified, the defendant Mr Felton seeks an order pursuant to that liberty substituting a dimension of 3.4 metres for 3.6 metres. The basis upon which he seeks that order is one of cost, there being some evidence that it will cost some $3,250 to modify the gateposts so as to allow an aperture of 3.6 metres, but only $500 to modify them so as to allow an aperture of 3.4 metres.
3 The application is opposed by Mr and Mrs Trewin, who say that it will reduce the manoeuvrability of vehicles in the carriageway at that point. In the current configuration of the carriageway, which is four metres in width, the gateposts are located at a critical point, in the sense that they are at the point where vehicles halt, manoeuvre and turn when entering or exiting the Trewins’ garages. Although Mr Mescher submits that the reduction involved is of only 20 centimetres, the proper way of looking at it is that it results in the loss of a total of 60 centimetres from the right of way of 400 centimetres at that point. That is a loss of some 15 percent of the width at a critical point. Although there is no admissible evidence on the present application that that will increase the inconvenience to the Trewins, it is obvious that every loss of width of the right of way at that point must reduce manoeuvrability, and thus the amenity of the right of way, at that point.
4 Although, if it were purely a matter of discretion, the question of the comparative costs of the two solutions might be of significance, in my view, the question of costs, if it is relevant at all, is only a very subsidiary and minor consideration. The true question here is whether the wider gateposts and narrower aperture would be an unreasonable interference by the user. I think there is an onus on the defendant, in the present circumstances, to establish that it would not, having regard to the prima facie position already established of 3.6 metres, and I am not satisfied that the defendant has discharged the onus of proving that the gateposts in that configuration would not be an unreasonable obstruction. Accordingly, I will not vary the dimension of 3.6 metres previously fixed.
5 The motion also seeks an order extending time for compliance with the order of the Court. In the light of the negotiations that have taken place between the parties in an endeavour to resolve these issues, I do not have the slightest difficulty in acceding to the application for an extension of time as sought. The most recent affidavit of Mr Felton indicates that the order can be complied with by 2 November 2007 if the Court determines that an aperture of 3.6 metres is required.
6 I therefore order that time for compliance with the order made in accordance with paragraph 8 of the short minutes of order of 27 August 2007 as amended, be extended to and including 2 November 2007. I otherwise dismiss the Notice of Motion filed this day. There will be no order as to costs, with the intent that each party bear its own costs of the motion.
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