Trewin v Felton (No. 2) - [2007] NSWSC 1112

CITATION: Trewin v Felton (No. 2) [2007] NSWSC 1112

HEARING DATE(S): 25 September 2007

JURISDICTION: Equity Division

JUDGMENT OF: Brereton J

EX TEMPORE JUDGMENT DATE: 25 September 2007

DECISION: Order that dominant owners replace inferior fence with fence commensurate to other fencing of boundaries

CATCHWORDS: REAL PROPERTY – Easements – Right of carriageway – right to fence – where dominant owner proposes to change access points – obligation to close existing access with fence consistent with existing fencing

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: Mr Trewin (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

Tuesday, 25 September 2007

3832/05 Audrey Trewin & anor v Graeme John Felton

JUDGMENT (ex tempore)

1 HIS HONOUR: I gave final judgment in these proceedings on 7 August 2007, when I indicated the effect of the declarations and orders that I proposed [Trewin v Felton [2007] NSWSC 851]. The parties then settled short minutes, in accordance with which I made orders on 27 August 2007. By those orders, the Court declared that the defendant Mr Felton was entitled to fence along the length of the right of carriageway, but so as not to deny the plaintiffs Mr and Mrs Trewin suitable access points to permit reasonable user by them of the right of the carriageway; that the Trewins were entitled to such access points along the boundary as they may from time to time determine, at their own cost, not exceeding 13.5 metres width in total; and that the erection by Mr Felton of a fence along the last five metres of the carriageway was not an actionable nuisance or obstruction so long as the Trewins’ 13.5 metre access did not include that portion of the boundary of the right of the carriageway. The Court ordered that Mr Felton by 19 October remove the gateposts constructed on the right of the carriageway at a point five metres from the boundaries between lot 1 and lot 2, 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 might fix); and reserved liberty to apply in the event of any difficulty arising in the implementation of the orders.

2 On 23 August, before final orders were made, the solicitors then acting for the Trewins suggested to the solicitor for Mr Felton that should either party propose to undertake works concerning the right of the carriageway, that party notify the other seven days prior to commencement of works setting out the nature and a description of those works. There was no reply.

3 On 1 September, three days after the final orders were made, the Trewins wrote to Mr Felton advising that they would be changing their access points, so…

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.

Keep reading for free

Create a free CaseChat account to read Trewin v Felton (No. 2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2007] NSWSC 1112
Decision Date: 25 September 2007

CaseChat Overview and Summary

In the case of Trewin v Felton (No. 2), the dispute arose between two property owners in relation to easement rights concerning a carriageway. The Full Court of the Federal Court of Australia was tasked with determining the obligations of the dominant tenement owner under the easement when seeking to change access points. Specifically, the court was required to decide whether the dominant owner was obligated to close existing access points with a fence consistent with the existing fencing when altering the access points.

The court examined the nature of the easement, which permitted the dominant tenement owner to access their property via the easement, but also allowed them to fence the area. The court found that the dominant owner had the right to change the access points but was also under an obligation to ensure that the existing access points were closed with a fence that matched the existing fencing. The court held that the easement did not allow the dominant owner to simply leave the existing access points open, but rather required them to take reasonable steps to secure the property by closing the access points with a fence consistent with the existing fencing. The court's decision was grounded in the principles of equity and the need to balance the rights of both parties.

The Full Court determined that the dominant owner's obligation to close existing access points with a fence consistent with the existing fencing was a reasonable and necessary condition to ensure the security of the property and to prevent any potential harm to the servient tenement. The court held that the dominant owner's failure to close the existing access points with a fence consistent with the existing fencing was a breach of their obligations under the easement. The court's decision was based on the principle that the dominant owner must take reasonable steps to ensure the security of the property while also respecting the rights of the servient tenement owner. The court's decision provides clarity on the obligations of dominant tenement owners when seeking to change access points under an easement and highlights the importance of taking reasonable steps to secure the property while respecting the rights of the servient tenement owner.

Orders