Atkinson v Jeffery

The present applications

1. There are two applications before this Court.
2. The first is Ms Atkinson's Amended Summons Seeking Leave to Appeal (in proceedings 2024/162618) from the orders of the primary judge on the grounds set out in an unfiled amended notice of appeal and identified by paragraph numbers 1A, 1, 2, 3, 3A, 4, 4.1, 4.2, 5, 5.1, 6 and 7. The parties to that proposed appeal are Ms Atkinson and the Jefferys. Leave to bring that appeal was required by Supreme Court Act 1970 (NSW), s 101(2)(r), the final judgment not involving a claim, demand or question to or respecting any property or civil right amounting to or of the value of $100,000 or more. Each of the ten orders or declarations made by the primary judge is sought to be set aside, although some of those orders or declarations are not the subject of a ground of appeal.
3. The second application before this Court is Ms Atkinson's Notice of Motion filed on 29 May 2024 (in proceedings 2023/361086), which seeks the discharge of an order made by Adamson JA on 3 May 2024 dismissing as "incompetent" a Notice of Appeal filed in those proceedings on behalf of Ms Atkinson on 25 January 2024 (Atkinson v Jeffery [2024] NSWCA 96 (the appeal judgment or AJ)). The application is made under Supreme Court Act, s 46(4), which requires on such a review that this Court be satisfied that the relevant decision was "plainly wrong" (Wentworth v Wentworth (1994) 35 NSWLR 726 at 731 (Mahoney JA); Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403 at [48]; Singh v Singh [2017] NSWCA 15 at [23]).

Application to set aside orders made by Adamson JA

1. The relevant application before Adamson JA was the Jefferys' motion to dismiss the Notice of Appeal. Her Honour identified at the outset the basis on which the Jefferys contended that the appeal should be dismissed as "incompetent" (at AJ[2]): … The Jefferys submitted that leave was required in respect of grounds 1-9 and 12-13 as the value of the matter at issue was less than $100,000 (s 101(2)(r) of the Supreme Court Act 1970 (NSW)…
2. In that Notice of Appeal, grounds 1 to 7 were substantially the same as the grounds bearing those numbers in the unfiled amended notice of appeal which is the subject of the first application. In addition, the latter document includes grounds 1A and 3A and amendments to grounds 4 and 5, principally by the addition of grounds 4.1, 4.2 and 5.1.
3. At this point, it is instructive to set out the relevant chronology: DATE EVENT 25.1.2024 Ms Atkinson's Notice of Appeal filed. 4.3.2024 Jefferys' Notice of Motion to dismiss appeal as "incompetent" filed. Also seeks alternative relief, including orders that particular grounds be set aside or dismissed or struck out. 18.3.2024 Registrar directs Ms Atkinson to file and serve summons seeking leave to appeal by 8 April 2024. Also makes direction waiving filing fee (at AJ[14]). 22.4.2024 Registrar extends time for filing and service of summons seeking leave to appeal to 26 April 2024. 24.4.2024 Mr Adamson (solicitor) emails Registrar, Court of Appeal, enclosing signed summons seeking leave to appeal, for filing. Notes that "filing fee has been waived". Requests "Please return the sealed Summons… urgently". 29.4.2024 Hearing of Jefferys' motion before Adamson JA. 2.5.2024 Court sends email to Mr Adamson (solicitor) attaching copy of "filed" summons. (9:06am) 3.5.2024 Judgment of Adamson JA.

1. Adamson JA dismissed the Notice of Appeal as "incompetent" because leave to appeal was required and had "not been sought" (AJ[23], [33]). In doing so, her Honour recorded Mr Adamson's submissions that leave to appeal was not required because the matter in issue amounted to $100,000 or more (AJ[24]ff).
2. In the course of argument, her Honour had the following exchange with Mr Adamson as to what might follow if her Honour dismissed the appeal as "incompetent": HER HONOUR: … Now, if you then seek to file a summons for leave to appeal, then you would just need to do that by way of a fresh proceeding… Then you could do that when the time comes, and if you need an extension of time, which you probably do, in the summons you seek an extension of time. ADAMSON: That's why I - your Honour, I was kind of confused about that because when I went to file the summons there was no - I couldn't find the provision - HER HONOUR: No, but just a minute. ADAMSON: But what I'm saying, I understand what you're saying. HER HONOUR: You say you seek to file a summons. You haven't sought to file a summons. ADAMSON: No. HER HONOUR: You're relying on an appeal and you're saying you don't need a summons. So what are you saying? ADAMSON: I'm saying my argument is it doesn't appear to me to be needing leave, okay, and -
3. The transcript of the proceeding before Adamson JA on 29 April 2024 was included in the "white folder" prepared by the Registrar and provided to the parties before the hearing in this Court. It also formed part of a bundle of documents exhibited to the affidavit of Luke Richards sworn 5 June 2024. That affidavit, but not the exhibited documents (with the exception of the transcript), was included in the white folder but not read in the Jefferys' case. The passage from the transcript set out above was extracted in the Jefferys' written outline of argument. Ms Atkinson's written submissions in reply dated 6 June 2024 state that the motion to set aside her Honour's order was filed without the benefit of that "transcript". However, Mr Adamson had obviously obtained a copy of the transcript at some point before the hearing because he indicated in oral argument that he had provided a copy of that transcript to the Jefferys.
4. After this Court reserved, a question was raised as to whether the transcript should have been formally tendered in evidence. Correspondence between the solicitors for the Jefferys and the Registrar suggested that Mr Adamson objects to that course. As the transcript was included in the white folder, and treated by the Court and the parties as being before the Court, it should be and has been formally marked as an exhibit (Ex 1). It is plainly relevant to the determination of the s 46(4) application, and was the subject of questions directed to Mr Adamson during oral argument. At no time did he suggest that the transcript was not relevant.
5. Contrary to what was said during the exchange extracted above at [11], and plainly unbeknownst to her Honour, Mr Adamson had sought to file a summons seeking leave to appeal five days earlier. However, at the time of the hearing before Adamson JA, he had not received back from the Registry a sealed copy of that summons for service.
6. Having dismissed the Notice of Appeal as "incompetent", her Honour ordered that Ms Atkinson pay the Jefferys' costs of that appeal, including the costs of their motion filed on 4 March 2024 (AJ[41]).

Application for leave to appeal

1. The substantial question for this Court remains whether Ms Atkinson should have leave to appeal on the grounds proposed.
2. It is necessary first to describe briefly the issues before Peden J and the orders her Honour made. The background facts, including in relation to the First ROC, are set out at J[3]-[26].

Issues for decision and orders made

1. Those issues and the orders made by the primary judge are identified at J[34] and [158] respectively, and are in substance as follows (adopting the descriptions in the diagram at [3] above): 1. Were the Jefferys entitled to a s 88K easement providing access to and from the Second ROC to the First ROC around the dam shown in Lot 133, and eventually to the Top Paddock? If so, were the Adams Defendants or Ms Atkinson entitled to compensation? 2. Should the Jefferys instead use the alternative routes proposed by the defendants, described as "proposed easement 1" and "proposed easement 2"? Orders 1 and 2 made on the determination of issues (1) and (2) created a right of carriageway 10m wide pursuant to Conveyancing Act 1919 (NSW), s 88K benefiting Lot 34 and burdening Lot 133 over the existing "established road" (J[9]) around the dam on Lot 133; and required the Jefferys to pay the Adams Defendants as the registered proprietors of Lot 133 a sum of $825 plus GST by way of compensation. 1. Was a Deed of Licence executed by the Jefferys and Ronald and Kay Adams enforceable, and were the Jefferys entitled to injunctive relief to restrain the Adams Defendants from breaching the clause permitting the Jefferys to use the "Access Track" on Lot 133 to get to and from the Second ROC to their house? By order 3 it was declared that the erection of a wire fence on Lot 133, which prevented the Jefferys' use and enjoyment of the "Access Track", constituted a breach of cl 3.1 of the (enforceable) Deed. By order 4 Ronald and Kay Adams were restrained from erecting another fence in the place of that wire fence or otherwise obstructing the Jefferys' use of the "Access Track". 1. Had Ms Atkinson substantially interfered with the Jefferys' use of the First ROC in Lot 132, being the part of that right of carriageway marked "A" in the diagram at [3] above, by the erection of fences and gates? If so, were the Jefferys entitled to orders requiring the removal or alteration of those fences or gates? By order 5 a declaration was made that the wire fences and gates erected in area "A" constituted a nuisance which substantially interfered with the Jefferys' ordinary use and enjoyment of the First ROC over Lot 132. By order 6 Ms Atkinson was required to remove the gates and wire fences, or to install gates in Lot 132 which had an entrance width of at least six metres. 1. Were the Jefferys entitled to carry out works on the First ROC in Lot 132 in the part marked "A" so as to improve its "useability" (J[104])? By order 7 it was declared that the Jefferys had the right to carry out at their expense work reasonably necessary to improve the "useability" of the First ROC on Lot 132, including levelling and grading work. Order 8 granted them liberty to apply to the Court in relation to the operation of order 7.
2. The primary judge also decided the Adams Defendants' cross-claim which alleged trespass by the Jefferys on Lot 133 by their using the "established road" to deviate around the dam when travelling between the First and Second ROCs. It was also alleged by Ms Atkinson that there was trespass involved in the Jefferys' use of an existing pathway "K" on Lot 132 and to the southeast of the part of the First ROC marked "A". The primary judge rejected these claims, and by order 9 dismissed the defendants' cross-claim. As to the first allegation, her Honour found that the use of that pathway was appropriate as a deviation. As to the second allegation, her Honour found that the use of that pathway was consensual, both parties having mistakenly believed that it was on the First ROC.

Should Ms Atkinson have leave to appeal?

1. As was observed by the Chief Justice in Cheng v Motor Yacht Sales Australia Pty Ltd t/as The Boutique Boat Company (2022) 108 NSWLR 342; [2022] NSWCA 118 at [15]: … a grant of leave to appeal generally requires the identification of an issue of principle, a question of public importance or a reasonably clear injustice going beyond something that is merely arguable: see, for example, Jaycar Pty Limited v Lombardo [2011] NSWCA 284 at [46]; Be Financial Pty Ltd as trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [32]-[38]…; The Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26 at [13]; Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28]; PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48 at [6].

Proposed grounds 1A to 4.2

1. These grounds as described in the unfiled amended notice of appeal challenge the correctness of the primary judge's orders 1 and 2 creating the easement pursuant to s 88K. In the Amended Summons leave is only sought to appeal from order 1.
2. Ground 1A is that, having conducted a walking view of the proposed easement, the primary judge erred in not taking into consideration that the "established road" was only three or four metres wide. Having done so, the primary judge is said to have erred in not refusing to grant the easement because of the narrowness of that road or pathway. The easement applied for was 10m wide and followed the existing roadway. The same roadway formed part of an existing right of way granted to Transgrid over Lot 133. There was no good reason why the easement to be granted should not be the same width as the existing one in Transgrid's favour. Nor was the submission now put made to the primary judge or supported by any evidence suggesting that the 10m easement was not reasonably necessary.
3. By ground 1 it is submitted that the primary judge erred in finding that the "Handle" (the narrow strip of land connecting the Jefferys' house with the Top Paddock) did not provide a viable or safe means of vehicular access to and from the Top Paddock. The Jefferys' evidence was that they had never driven up the "Handle" (J[8]). More significantly, her Honour accepted the evidence of the expert traffic engineer called by the Jefferys, whose opinion was that the "Handle" "does not provide a viable or safe means of vehicular access or for the transportation of cattle or other animals in a trailer". That opinion was not challenged in cross-examination (see J[74]).
4. Ground 2 is that the primary judge erred in holding that the Jefferys had made reasonable attempts to obtain an easement to the same effect as that sought (J[96]-[100]). No written or oral argument is made in support of this ground. Having referred to what s 88K(2)(c) requires as to the taking of "all reasonable attempts" to obtain the proposed easement, the primary judge at J[97] referred to the parties' participation in a mediation in May 2022, and to the subsequent making of several open offers by the Jefferys for that easement, and concluded that the Jefferys had "made efforts to engage with the defendants and all offers were… rejected or ignored". Her Honour's further observations at J[98] and [99] include that the Adams Defendants were "implacably opposed" to the proposed easement, her Honour considering that in the face of that opposition the Jefferys had made all reasonable attempts to obtain the proposed easement or one having the same effect.
5. Ground 3 covers the same subject matter as grounds 1A, 1 and 2, and also addresses the subject matter of grounds 5, 5.1 and 6. As to the former, it asserts that her Honour should have made findings that the "Handle" was not too steep for vehicles. As to the latter, it asserts that the "real reason" the Jefferys used route "K" rather than "A" was that the latter part was too dangerous to traverse. The findings sought in relation to the "Handle" are contrary to the findings referred to above, which were supported by unchallenged evidence.
6. Ground 3A is, to say the least, novel. It is that in preparing for and conducting the view of the "Handle" on foot, the Court breached a duty of care owed to Mr Adamson and the other participants, and as a result "impaired" his ability properly to represent his clients during the view and on the next day of the hearing. Perhaps more relevantly, it was not suggested in Ms Atkinson's written or oral submissions that any of this resulted in a denial of procedural fairness or other prejudice to the defendants in respect of the conduct of their case. Consistently with that being the position, in their written submissions the Jefferys assert that no such "complaint was made by the applicant's solicitor, either during the view or during final submissions on the following day". Before this Court, Mr Adamson did not challenge or respond to this submission, merely asserting that the position was otherwise.
7. Ground 4 is that the primary judge erred in finding that the dam which obstructed the First ROC was erected in 1998 rather than prior to 1998 (J[9]). The significance of whether the dam was created in or before 1998 appears to be in the argument made by ground 4.1.
8. A factor which the Court took into account when granting the easement was the Jefferys' right as owners of the dominant tenement to deviate onto other parts of the servient tenement in order to get around an obstruction placed on the right of way by the owner of the servient tenement (see J[57]-[61]).
9. Mr Adamson made no submission to the primary judge that as a matter of principle a right of deviation did not arise in circumstances where the dam constructed by the Adams Defendants obstructed the use of the carriageway. Nor did he submit that the obstruction created by the dam was not caused by the owners of the servient tenement (J[62]).
10. Ground 4.1 is that the primary judge erred in finding that the Jefferys had a right of deviation around the dam in the absence of any evidence that the Adams Defendants had constructed the dam without the consent of the prior owners of the dominant tenement. The suggestion appears to be that the dam may have been constructed with the consent of those prior owners. However, there is no evidence as to whether that was so or not. In any event, the underlying proposition, that the right of the owner of a dominant tenement to deviate is lost if the previous owner of the dominant tenement had agreed to the placement of the obstruction, does not necessarily follow. The right to deviate exists as an incident of the easement, and not as a separate encumbrance, and need not be registered or particularised on the title (Hemmes Hermitage Pty Ltd v Abdurahman (1991) 22 NSWLR 343 at 355-356 (Priestley JA); 350 (Kirby JA); Owners of Strata Plan 48754 v Anderson [1999] NSWSC 580 at [34] (Young J)). See also P Butt, Land Law (5th ed, 2006, Lawbook Co) at [16106]: "In the case of Torrens title land, the implication of [an] ancillary right is not precluded by [its] absence from the Register. If the easement is enforceable, then so too are the ancillary rights."
11. The Court has a limited power (Conveyancing Act, s 89(1)(b)) to modify or wholly or partially extinguish an easement or restrictive covenant as the result of some prior agreement, even where that easement or restrictive covenant is registered under the Real Property Act 1900 (NSW). The power may be enlivened where an agreement to modify or extinguish the easement was made by the predecessor in title to the dominant tenement (see Pieper v Edwards [1982] 1 NSWLR 336). A question would then arise as to whether and how the court should exercise that discretion. However, no such question arises here because no evidence of any agreement was led before the primary judge.
12. Ground 4.2, as the Jefferys submit, is predicated on there being no right of deviation around the dam. In argument before the primary judge, the Adams Defendants accepted that there was a right of deviation (J[62]-[64]). Their argument was that the right of deviation should not be exercised across the "established road", but rather by the defendants' "proposed easement". The primary judge rejected that alternative as having problems with native and large trees, water flows and a steep gradient (J[81]-[84]). Her Honour did not err in applying the relevant principles (J[57]-[61]).

Proposed grounds 5, 5.1, 6 and 7

1. These grounds are directed to the fourth and fifth of the issues described above and orders 5, 6, 7 and 8 as made. In the Amended Summons, leave is only sought to appeal from orders 5, 6 and 7. Grounds 5 and 5.1 challenge the primary judge's finding that the wire fences and (later) gates installed on the First ROC were the reason why the Jefferys needed to deviate through the part of Lot 132 which included area "K". It is said that the real reason that the Jefferys could not use that part of the First ROC was because of the natural features of the land. Ground 6 contends that the primary judge should have found that the reason why the Jefferys used area "K" was because area "A" "was too steep for vehicles". Ground 7 is that the primary judge erred in finding that a 3m-wide gate installed by Ms Atkinson was "too narrow" and should have found that the gate size was irrelevant because the "real obstructions were natural ones".
2. Her Honour's findings as to the reasons why route "K" rather than "A" was used are at J[16]-[21]. Her Honour accepted the Jefferys' evidence, most of which was not challenged (J[133], [137], [138]). No argument is made as to why those findings involved any error. The Jefferys' evidence was not contradicted by Ms Atkinson (J[131]).

Conclusion

1. Mr Adamson for Ms Atkinson has made no written or oral submissions directed to why leave should be granted, and has instead focused solely on the asserted merits of some of the proposed grounds of appeal. In circumstances where no particular reason is proffered as to why leave should be granted, and where the proposed grounds do not suggest the existence of one or more of the abovementioned factors or any other good reason for granting leave, leave must be refused and the Amended Summons dismissed.
2. More specifically, grounds 1A, 1, 2, 3, 4, 4.1, 4.2 challenge the making of orders 1 and 2 with respect to the creation of the s 88K easement. None of those grounds in its terms identifies even an arguable error on the part of the primary judge. For that reason, leave to appeal on those grounds should not be granted. This makes it unnecessary to consider whether leave should be refused for want of necessary parties being joined (cf Uniform Civil Procedure Rules 2005 (NSW), rr 51.2, 51.4). The Adams Defendants as owners of the servient tenement are "directly affected" by the relief sought in the proposed appeal and each would be a "necessary party" to the appeal. They have not been joined.
3. There are no grounds of appeal which address orders 3 and 4, which in turn are directed to the Deed of Licence to which Ms Atkinson was not a party. The unfiled amended notice of appeal seeks to have those orders set aside. It discloses no grounds for doing so.
4. Grounds 5, 5.1, 6 and 7 challenge orders 5, 6, 7 and 8. Neither the terms of those grounds nor the argument made in support of them identifies any arguable error by the primary judge. For that reason, leave to appeal on those grounds should be refused.
5. In the result, leave to appeal should be refused and the Amended Summons dismissed. There is no reason why costs should not follow that event. Accordingly, Ms Atkinson must pay the Jefferys' costs of the proceedings.

Notice of Motion seeking to set aside decision of Adamson JA

1. This application by notice of motion should also be dismissed with costs.
2. Adamson JA's order dismissing the Notice of Appeal as "incompetent" was correctly made by reference to what her Honour had been told by Ms Atkinson's solicitor, Mr Adamson.
3. Whilst it is perhaps unlikely that her Honour would have dismissed the Notice of Appeal as "incompetent" if she had been told by Mr Adamson that he had sought to file a summons seeking leave to appeal, there is no utility in her Honour's order now being set aside. The notice of appeal which her Honour dismissed as "incompetent" is not materially different from the Amended Notice of Appeal in respect of which we have refused leave to appeal.
4. In addition, Mr Adamson maintained in his submissions to this Court that the application under s 46(4) was only made to meet a possible argument that her Honour's dismissal of the unfiled notice of appeal gave rise to an issue estoppel or res judicata. However, as the dismissal of the appeal as "incompetent" was not "on the merits", it could not have that result. More significantly, the application for leave to appeal has now been addressed on its merits and rejected.
5. Accordingly, the position remains that there is no good reason to reverse the decision of Adamson JA, which in any event was not "plainly wrong" on the material before the Court. Nor is there any basis advanced upon which her Honour's costs order should be reversed, even if the order dismissing the appeal as "incompetent" stands.
6. In relation to the costs of the motion before this Court, again there is no good reason shown why costs should not follow the event and, accordingly, be paid by Ms Atkinson as the unsuccessful party.

Orders

1. For these reasons, the following orders are made: In proceedings 2024/162618 1. Dismiss the applicant Ms Atkinson's Summons Seeking Leave to Appeal from the judgment of Peden J on 27 October 2023. 2. Order that the applicant pay the respondents' (the Jefferys) costs of that Summons. In proceedings 2023/361086 1. Dismiss the applicant Ms Atkinson's Notice of Motion filed 29 May 2024 seeking to set aside the orders made by Adamson JA on 3 May 2024. 2. Order that the applicant pay the respondents' (the Jefferys) costs of that Motion.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 June 2024