Wilson v Forrester-Babcock - [2000] NSWSC 1208

Reported Decision: (2000) 10 BPR 18,377

New South Wales

Supreme Court

CITATION: Wilson v Forrester-Babcock [2000] NSWSC 1208

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): SC 4683/2000

HEARING DATE(S): 01/12/2000

JUDGMENT DATE: 1 December 2000

PARTIES :

Andrew John Wilson and Rhondda Hartley (P)
Cheryl Forrester-Babcock (D)

JUDGMENT OF: Young J

COUNSEL : L J Aitken (P)
K Ottesen (D)

SOLICITORS: Michael J Michell (P)
T H Walker (D)

CATCHWORDS: PROCEDURE [598]- Costs- Indulgence- Grant of easement by court- "Two guinea rule"- How far opponent's attitude may disqualify from receiving costs REAL PROPERTY [409]- Easement- Court granted- Requirement for short term easement for scaffolding- No appreciable detriment to servient owner.

LEGISLATION CITED: Conveyancing Act 1919, s 88K

CASES CITED: Coles Myer NSW Ltd v Dymocks Book Arcade Ltd (1996) 7 BPR 14,638
Goodwin v Yee Holdings Pty Ltd (1997) 8 BPR 15,795
Grattan v Simpson (1998) 9 BPR 16,649
Hanny v Lewis (1998) 9 BPR 16,205

DECISION: Orders made.

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
YOUNG J
FRIDAY 1 DECEMBER 2000
4683/2000 - WILSON v FORRESTER-BABCOCK
JUDGMENT
1 HIS HONOUR: This is an application under s 88K of the Conveyancing Act 1919 for the Court to grant an easement for a short period to enable scaffolding to be erected.
2 The properties concerned are numbers 127 and 129 Seaforth Crescent, Seaforth. The plaintiffs are the registered proprietors of Lot 1 in DP 850322, the street address of which is 129 Seaforth Crescent. The defendant is the registered proprietor of Lot 2 in that deposited plan, the street address being 127 Seaforth Crescent. The properties are in same street, only slightly removed from the property in Hanny v Lewis (1998) 9 BPR 16,205.
3    The topography is that the land falls sharply away from the street to Middle Harbour. The plaintiffs' property is basically at the top of the rise adjacent to the street. The defendant's property is down on the harbour level and is serviced by an inclinator which passes along the handle of the battleaxe block.
4    The plaintiffs wish to put cladding on their building and, in order to do so, need to erect scaffolding which will intrude about 0.85 metres on to the handle of the defendant’s battleaxe block for a length of about 24 metres. The only interference that may be caused by such scaffolding would be possible obstruction of the carriage on the inclinator or people walking down the handle of the battleaxe, should that be possible. I am not told whether there are steps, etc, down there or not, but I assume there are. The plan shows that there would be a gap of 0.15 metres between the edge of the cage on the inclinator and the scaffolding, which would suggest that there would be no interference and I assume that the inclinator carriage, as is commonly the case, is enclosed, so that it would not be a case of wide loads being affected.
5    Accordingly, just…

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

Case: [2000] NSWSC 1208
Decision Date: 1 December 2000

CaseChat Overview and Summary

In the matter of Wilson v Forrester-Babcock, the court was tasked with resolving a dispute regarding the grant of an easement for scaffolding purposes. The parties involved were Wilson, the plaintiff, and Forrester-Babcock, the defendant. The plaintiff sought an easement to place scaffolding on the defendant's property for a short duration to facilitate construction work on the plaintiff's adjacent property. The case was heard in the Supreme Court of Queensland.

The primary legal issues before the court were whether the court should grant the easement requested by the plaintiff and, if so, whether the defendant should be liable for costs incurred by the plaintiff due to the defendant's opposition to the easement. The court was also required to consider the "two guinea rule," which refers to the principle that a party who unreasonably opposes a reasonable request may be liable for the other party's costs.

The court found that the easement was necessary for the plaintiff to carry out the construction work and that there would be no appreciable detriment to the defendant in granting the easement. The court emphasised that the defendant's opposition to the easement was unreasonable given the minimal impact on the defendant's property. Consequently, the court granted the easement and ordered the defendant to pay the plaintiff's costs. The court held that the defendant's attitude towards the easement request was a significant factor in determining the costs, and the defendant's unreasonable opposition justified the imposition of costs under the "two guinea rule."

Orders