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Trewin v Felton

Trewin v Felton

Case [2007] NSWSC 1370 26 October 2007

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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…

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 Trewin v Felton

Details

AGLC: Trewin v Felton [2007] NSWSC 1370
Case: [2007] NSWSC 1370
Decision Date: 26 October 2007

CaseChat Overview and Summary

Trewin v Felton involved a dispute over the width of a driveway aperture between two adjacent properties in Sydney. The court was asked to determine whether the defendant, Felton, had unlawfully obstructed the plaintiff, Trewin's, right of way over the driveway. The driveway was accessed via two gateposts and was used to access a rear laneway. The plaintiff claimed that the gateposts were placed too close together, thereby obstructing the driveway, while the defendant argued that the gateposts were properly placed, allowing for sufficient access.

The central legal issues for the court to decide were whether the gateposts constituted an obstruction and whether the width of the driveway aperture was sufficient to allow reasonable access. The court had to interpret the relevant easement agreement and assess whether the defendant's actions amounted to an unlawful interference with the plaintiff's right of way.

The court found that the gateposts did indeed obstruct the driveway, as the aperture was too narrow to allow for reasonable access. The court held that the width of the aperture must be sufficient to allow vehicles to pass through without difficulty. The court also found that the defendant's actions amounted to an unlawful interference with the plaintiff's right of way, as the obstruction significantly impeded the use of the driveway. Based on these findings, the court ordered the defendant to remove the gateposts or adjust their placement to allow for a wider aperture. The court further ordered the defendant to compensate the plaintiff for any damages caused by the obstruction.

Orders