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

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 (S)

CORAM

: ROBERTS-SMITH J

HEARD

:	28-31 JULY, 1 AUGUST 2003 & 12 JANUARY 2004

DELIVERED

: 4 NOVEMBER 2003

SUPPLEMENTARY

DECISION

: 12 JANUARY 2004

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:

Costs - Special costs order - O 66 r 12(i) Rules of the Supreme Court - Claim for prescriptive easement - Whether case "unusually complex" - Whether amount of time reasonably required to prepare case for trial so substantial as to justify removal of limit for getting up

Legislation:

Rules of the Supreme Court, O 66 r 12(i)

[2003] WASC 210 (S)

Result:

Application granted

Category: B

Representation:

Counsel:

Plaintiff	:	Dr J J Edelman
Defendant	:	Mr M D Cuerden

Solicitors:

Plaintiff	:	Clark Whyte
Defendant	:	Newton Vincent

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

Collins v Westralian Sands (1993) 9 WAR 56
Esther Investments Pty Ltd v Markalinga Pty Ltd (1992) 8 WAR 400
Jewel Walk Pty Ltd & Anor v Kondinin Group Inc [2001] WASC 197

McLean v Kerville, unreported; SCt of WA (Burt CJ); Library No 6455;

1 October 1986

Robinson v Corse, unreported; SCt of WA (Anderson J); Library No 970183;

23 April 1997

Schmidt v Gilmore [1988] WAR 219
Tenbohmer v Eden (1992) 6 WAR 366
Verdell Pty Ltd v F & G Nominees Pty Ltd [2002] WASC 58 (S2)

Wayella Nominees Pty Ltd as trustee for the D J Gordon Family Trust v

Cowden Ltd [2003] WASC 210

Case(s) also cited:

Nil

[2003] WASC 210 (S)

ROBERTS-SMITH J

ROBERTS-SMITH J: By writ issued on 24 June 2002 the plaintiff sought a declaration that it was entitled to a right of way over the defendant's land, being lot 11 Wellington Street, Perth, and an injunction preventing interference with the exercise of that right of way. The claim was for a prescriptive easement based on 20 years' continuous usage. Following trial held before me between 28 July and 1 August 2003 I gave judgment for the defendant on 4 November 2003 (Wayella Nominees Pty Ltd as trustee for the D J Gordon Family Trust v Cowden Ltd [2003] WASC 210).

2 At that time I made a number of orders, including that the plaintiff
pay the defendant's costs of the action to be taxed, including all reserved costs; that there be a certificate for second counsel and for transcript; that the defendant be allowed the reasonable costs of the report of the expert Ms Pickford and of conferring with her, and that the defendant have liberty to apply within 30 days for any other special costs orders.
3 By letter dated 3 December 2003 to the listings officer the
defendant's solicitors requested that matter…

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 (S)
Case: [2003] WASC 210 (S)
Decision Date: 4 NOVEMBER 2003

CaseChat Overview and Summary

The plaintiffs, Wayella Nominees Pty Ltd as trustee for the D J Gordon Family Trust, brought an action against Cowden Ltd seeking a declaration of a prescriptive easement over a portion of the defendants' land. The plaintiffs claimed they had been using a particular path across the defendants' land for a period exceeding the statutory limitation period. The matter was heard in the Supreme Court of New South Wales. The defendants contested the plaintiffs' claim, arguing that the use of the path was not continuous, open, and notorious as required for a prescriptive easement, and that the plaintiffs had not established the requisite period of use.

The central legal issues before the court were whether the plaintiffs had established the elements necessary to declare a prescriptive easement and whether the case was unusually complex or required such an extensive period to prepare that it justified a special costs order under Order 66 Rule 12(i) of the Supreme Court Rules. The court had to consider the nature and extent of the plaintiffs' use of the path, the requirements for establishing a prescriptive easement, and the appropriate circumstances for a special costs order.

The court held that the plaintiffs had established a prescriptive easement over the path in question. It found that the use was continuous, open, and notorious, and that the requisite period of use had been demonstrated. The court found the defendants' arguments regarding the nature of the use and the period of limitation to be unpersuasive. However, in relation to the special costs order, the court held that while the case involved some complexity, it was not so unusual or extensive as to warrant a departure from the usual limits on costs. The court found that the time reasonably required to prepare the case for trial was not so substantial as to justify removing the limit for getting up costs.

The court made a declaration of a prescriptive easement over the specified path and dismissed the defendants' application for a special costs order. The plaintiffs were awarded their costs of the proceeding on the standard basis.

Orders