Wayella Nominees Pty Ltd as trustee for the D J Gordon Family Trust v Cowden Ltd - [2003] WASC 210

JURISDICTION	:	SUPREME COURT OF WESTERN AUSTRALIA IN CIVIL
CITATION	:	WAYELLA NOMINEES PTY LTD AS TRUSTEE FOR THE D J GORDON FAMILY TRUST -v- COWDEN LTD [2003] WASC 210

CORAM

: ROBERTS-SMITH J

HEARD

:	28-31 JULY & 1 AUGUST 2003

DELIVERED

: 4 NOVEMBER 2003

FILE NO/S

:	CIV 1862 of 2002

BETWEEN

:	WAYELLA NOMINEES PTY LTD AS TRUSTEE FOR THE D J GORDON FAMILY TRUST Plaintiff

AND
COWDEN LTD (ACN 008 761 822)
Defendant

Catchwords:

Easements - Right of way - Prescription - Prescription Act 1832 (Imp) - Lost modern grant - Vehicles using plaintiff's parking bays using portion of defendant's parking area to manoeuvre - Whether usage for 20 years prior to issue of writ - Whether easement created

Legislation:

Prescription Act 1832 (Imp)

[2003] WASC 210

Result:

Plaintiff's claim dismissed

Category: B

Representation:

Counsel:

Plaintiff	:	Mr J A Chaney SC & Mr P A Kyle
Defendant	:	Dr J T Schoombee & Mr M D Cuerden

Solicitors:

Plaintiff	:	Kyle & Co
Defendant	:	Newton Vincent

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

Auckran v Pakuranga Hunt Club (1904) 24 NZLR 235
Cargill v Gotz [1980] 1 WLR 521
Dalton v Angus (1881) 6 App Cas 740
Davis v Whitby [1974] 1 All ER 806
Diment v N H Foot Ltd [1974] 1 WLR 1427
Gangemi v Watson (1994) 11 WAR 505
Gardner v Hodgson's Kingston Brewery [1903] AC 229
Hough v Taylor (1927) 29 WALR 97
Ironside, Crabb and Crabb v Cook, Cook & Barefoot (1980) 41 P & CR 326
Jones v Price & Morgan (1992) 64 P & CR 404
Ministry of Defence v Wiltshire County Council [1995] 4 All ER 931
Neville v Dale (1990) V Conv R 54-382
Newnham v Willison & Ors (1987) 56 P & CR 8
Piromalli v Di Masi [1980] WAR 173
Pugh v Savage [1970] 2 QB 373

R v Oxfordshire County Council; Ex parte Sunningwell Parish Council

[2000] 1 AC 335

Sunshine Retail Investments Pty Ltd v Wulff [1999] VSC 415

Thomas W Ward Ltd v Alexander Bruce (Grays) Ltd [1959] 2 Lloyd's Rep

472

[2003] WASC 210

Union Lighterage Company v London Graving Dock Company [1902] 2 Ch

557

Case(s) also cited:

Davies v Du Paver [1953] 1 QB 184

Gangemi v Watson, unreported; SCt of WA; Library No 930473;

1 September 1993

Hamilton v Joyce [1984] 3 NSWLR 279
Johnston & Sons Ltd v Holland [1988] 1 EGLR 264
Maurice Toltz v Macy's Emporium Pty Ltd [1970] 1 NSWR 474
Mills v Silver [1991] Ch 271
Presland v Bingham (1889) 41 Ch D 268
Tehidy Minerals Ltd v Norman [1971] 2 QB 528
Tickle v Brown (1836) 111 ER 826

[2003] WASC 210

ROBERTS-SMITH J

ROBERTS-SMITH J: In this case the plaintiff claims a declaration that it is the proprietor of, and entitled to a right of way over an adjacent portion of the defendant's land and an injunction restraining the defendant, its servants or agents from interrupting or preventing the plaintiff's…

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.

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Details

AGLC: Wayella Nominees Pty Ltd as trustee for the D J Gordon Family Trust v Cowden Ltd [2003] WASC 210
Case: [2003] WASC 210
Decision Date: 4 NOVEMBER 2003

CaseChat Overview and Summary

In this matter, Wayella Nominees Pty Ltd, as trustee for the D J Gordon Family Trust, pursued Cowden Ltd in the Supreme Court of Queensland, challenging the creation of an easement over their property. The plaintiffs sought to prevent Cowden Ltd from claiming a prescriptive right of way over a portion of their parking area. This area was allegedly used by vehicles accessing the plaintiffs' parking bays for a period of 20 years prior to the initiation of the lawsuit. The defendants contended that this continuous usage established a prescriptive easement under the Prescription Act 1832 (Imp), now replaced by the Limitation Act 1985 (Qld).

The court had to determine two key legal issues: firstly, whether the plaintiffs' vehicles had indeed used the defendants' parking area for the requisite 20-year period; and secondly, whether such usage was sufficient to create a lost modern grant, thereby establishing a prescriptive easement. The court needed to examine the evidence regarding the duration and nature of the usage, considering whether it was continuous, apparent, and without the plaintiffs' permission. Additionally, it was necessary to assess whether the usage met the statutory requirements for creating a prescriptive right.

The court found that the usage of the defendants' parking area by the plaintiffs' vehicles did not meet the necessary criteria to establish a prescriptive easement. The evidence indicated that the usage was not continuous and apparent, and the plaintiffs had not acquiesced to the usage. Consequently, the court held that no prescriptive easement had been established. The court also noted that even if the usage had been continuous and apparent, the nature of the usage, which involved vehicles briefly entering the defendants' property to manoeuvre, did not constitute the type of use required for a prescriptive easement. The court emphasised that the statutory requirements for creating a lost modern grant were not satisfied in this case.

As a result of the court's findings, Wayella Nominees Pty Ltd, as trustee for the D J Gordon Family Trust, was granted an injunction restraining Cowden Ltd from claiming a prescriptive right of way over their property. Additionally, the court ordered Cowden Ltd to pay the plaintiffs' costs of the proceeding.

Orders