Transfer of Land Act 1893 (WA)

Castlemaine Tooheys Ltd v State of South Australia [1986] HCA 58; (1986) 161 CLR 148

Timpar Nominees Pty Ltd v Archer [2001] WASCA 430

(This judgment was delivered extemporaneously on 16 June 2009 and has been edited from the transcript.)

1 This is an application by the defendant's chamber summons for an interlocutory injunction against the plaintiffs, brought 10 June 2009 in circumstances of urgency.

2 The relief is sought essentially upon the basis of the undertaking as to damages signed by a director of the defendant on 10 June in the usual form - in order to obtain an interlocutory injunction and which seeks essentially the following relief:

Until after judgment in this action, or further order, the plaintiffs, whether by themselves, their officers, servants, agents or otherwise, be restrained and an injunction is hereby granted restraining them from undertaking any works on the right of way, which passes over their Servient Land, being lot 549 on deposited plan 123538 being the whole of the land comprised in Certificate of Title Volume 2095 Folio 116, without first providing the defendant's solicitors with seven days' written notice.

3 It is necessary for me to provide some background to the circumstances in which that relief is sought by the defendant on its counterclaim, in the context of an action that is in the Commercial and Managed Cases list.

4 The plaintiffs commenced these proceedings by writ with an endorsed statement of claim on 24 April 2009. Shortly thereafter the statement of claim was amended pursuant to O 21 r 1.

5 Essentially by reference to a helpful plan which is appended to that amended statement of claim, one sees lot 547, which is the property of the plaintiffs of some 40.4686 hectares, and which is referred to in the statement of claim as the Dominant Land - as well as the adjoining property owned by the defendant shaded in green on the diagram, lot 549 also of 40.4686 hectares; and referred to as the Servient Land.

6 The Servient Land abuts Caves Road in the South West of Western Australia.

7 What is in contention is a narrow strip of land on the southernmost boundary of the Servient Land - lot 549 - which on the plan is marked as some 10 metres in width, extending for what would seem to be 835.65 metres from Caves Road at the east - and running towards the Dominant Land, lot 547, to the west.

8 The amended statement of claim concerns issues which have arisen as regards the use by the plaintiffs of what I will refer to as a right of way running from Caves Road to their property - ie traversing westward across the bottom of the Servient Land to the commencement of the plaintiff's lot 547, at its easternmost point.

9 The amended statement of claim raises issues concerning the positioning and terminology of a 'sign' that is referred to in par 11, a 'gate', the locking of that gate, and the allegation seen in par 12 - that locking of the gate has prevented access by visitors to the right of way, and so then to the plaintiffs' Dominant Land.

10 There is also an issue raised in respect of encroaching trees - which are referred to in par 13 of the amended statement of claim at par 13(b) and 13(d).

11 The amended statement of claim culminates in the plaintiffs seeking a tranche of relief, essentially in the following terms:

(a) an order requiring the Defendant to forthwith remove the Gate and supporting structures from the [right of way] at the Defendant's cost;

(b) an order that the Defendant forthwith remove the Encroaching Trees from the [right of way] to the ROW Width at the Defendant's costs;

(c) an order that the Defendant forthwith make good all damage occasioned to the surface of the [right of way] as a result of any of the work referred to in paras (a) and (b) of the prayer for relief;

(d) damages for wrongful obstruction of the [right of way]; and

(e) an injunction restraining the defendant from further obstructing the [right of way] in any manner.

12 The matter, as I have mentioned, was entered in the Commercial and Managed Cases List. Some consensual directions were made by me in that respect pursuant to a memorandum of consent orders on 27 May 2009, essentially progressing the matter towards a trial, with various other standard form directions.

13 On 27 May 2009, the defendant filed a defence and counterclaim. Essentially its defence raised certain issues concerning the right of way, but did not deny the plaintiffs' entitlement to enjoyment of that right of way across the bottom of defendant's Servient Land.

14 However, as seen in par 15 of the defendant's defence, essentially, its position is that the plaintiffs 'are entitled to use the [right of way] to access the Dominant Land, only for those purposes reasonably contemplated as at the date of creation of the [right of way] and which purposes contemplate access related only to the general agricultural use of the Dominant Land and access to the home and farm buildings located on the dominant land.'

15 Then, the defendant pleads further at subpar 15.3:

[T]he plaintiffs' use the [right of way] for these purposes has not been hindered.

16 Reference is made in the defence and counterclaim, to a development application lodged by the plaintiff with the Shire of Busselton, as regards what would appear to be an application by the plaintiffs to conduct, from a vineyard that they operate on their land, what I will refer to as a 'cellar door' operation. The consequence of that cellar door venture would possibly be, so it is put, an increase in traffic over the right of way - were it to be used for access to and egress from the plaintiffs' Dominant Land, via Caves Road.

17 All this is currently before the Shire of Busselton raising issues concerning compliance by the plaintiffs with the Shire's District Town Planning Scheme No 20 - and which is referred to in the pleadings as DPS20.

18 However, in a counterclaim that the defendant has also lodged, it refers to the same right of way and contends under par 21, that it consists (in part) of a gravel 'track', which track extends from the Caves Road entrance to the Servient Land - to the entrance of the Dominant Land and continues the length of the southern boundary of the Dominant Land and to the western boundary of the Dominant Land.

19 Reference is then made in the counterclaim, to some historic woodlands and trees (the historic wood) that line either side of the track, with reference in par 25.1 to these trees providing a protective windbreak, and as well there being rows of grapevines which the defendant has planted as part of its vineyard - which also abut the track. The counterclaim refers to the times at which the windbreak, and the vineyard were established.

20 The defendant's counterclaim goes on to describe the development of the vineyard on the Servient Land, the sums of money that it has invested and the fact that it is a producer of wine for the purposes of a premium wine operation - referred to as Laurence Wines.

21 The right of way appears to have been in place prior to either the plaintiffs or the defendant becoming the respective registered proprietors of the adjoining lots that they now own, to which I have referred.

22 The counterclaim refers to requests that have occurred from time to time concerning tree pruning, which the defendant says has occurred, and further reference is made to the (negative) consequences which the defendant contends would occur - were the track (which is a subset, in area, it seems, of the 10 metre right of way) to be fully extended to actually comprise all the area of the right of way.

23 These (negative) consequences so alleged, are referred to, see for instance, in pars 44, 45 and 46 of the counterclaim, but essentially contend that interference by extending rights of way beyond the extent of the track, would interfere with the historic wood and also have (negative) consequences in terms of irreparable damage to the defendant's use of its land and its vineyard.

24 It is further contended in par 50 of the counterclaim that to extend the entire width of the track to 10 metres:

50.1 would provide no practical benefit to the Plaintiffs in accessing the Dominant Land, and

50.2 would not provide the Plaintiffs with sufficient access required to satisfy the requirements for accessing a Cellar Door Facility as set out in the TPS20 requirements [of the Shire of Busselton].

25 The consequences of excessive use of the track as alleged are also referred to in par 52 of the counterclaim, and are said to impede the defendant's reasonable use of its land, by irreparably damaging the ambience of its land, by substantially interfering with the defendant's use and enjoyment of its land and by exposing the vineyard, the dwellings and other property and vegetation situate on the defendant's land to damage from dust, traffic and thereby exposing the defendant and its employees, contractors, directors and invitees to a higher risk of personal injury in their movement, work and activities.

26 Under the counterclaim, the defendant seeks various relief, but relevantly, also seeks that this court exercise powers pursuant to s 129C of the Transfer of Land Act 1893 (WA) (as amended) as regards a modification of the right of way, so that it will extend to a width of 10 metres from the southern boundary of the Servient Land, but save and except for what I will refer to as various 'carve-outs' from the 10 metre width - concerning the historic wood, the windbreak and the vineyard and continuing, 'as established by [a] survey to be prepared by the Defendant and lodged with the Department of Land Information pursuant to order of this Honourable Court and to be registered on the titles of the Dominant Land and the Servient Land.'

27 Moreover, the counterclaim also seeks as relief (see par 54.2) a permanent injunction restraining the plaintiffs themselves or their servants or employees or otherwise from causing or permitting excessive use the right of way.

28 That summarises the counterclaim of the defendant of 27 May 2009, in this litigation - which is progressing towards a trial.

29 The reason why the matter falls before me today as an application for an urgent interlocutory injunction, is found in the defendant's affidavits - which comprise two affidavits of Ms Cinzia Lee Donald respectively of 10 June 2009 and 15 June 2009, which I have read and I will accept as the defendant's evidence in support of its application. I mean no disrespect to those affidavits if I say that in large part, they comprise an extensive series of correspondence passing back and forth as between the solicitors for the defendant and the solicitor for the plaintiffs over some time, in respect of efforts to attempt to resolve issues concerning the use(s), or work which is to be done on the track, or the right of way, as between now and the time of the trial.

30 Regrettably, extensive correspondence has not resulted in any consensus concerning the issue of preserving the status quo for the track and the right of way, up to trial.

31 I approach the law on rights of way, on the basis of helpful reasons of Kennedy J in the Full Court of the Supreme Court of Western Australia in the case Timpar Nominees Pty Ltd v Archer [2001] WASCA 430, see a Full Court decision of Kennedy, Pidgeon and Wheeler JJ delivered on 21 December 2001, in which Kennedy J said, at [41]:

The grant of a private right of way, ordinarily speaking, confers only a right to a reasonable use of the way by the grantee in common with others.

It does not impose any obligation on the grantor to make the easement suitable for use by the grantee and to keep it in repair -

(again omitting reference to the 1908 authority and to a 1940 authority).

The duty to repair is on the grantee, even where the right of way at the time of the grant is not physically fit for that purpose.

(I again omit further reference to cited authority).

34 His Honour's observations earlier in these reasons, in respect of the approach to the interpretation of easement rights, as referred to in reasons, at [35] and [36], and the cases there referred to, are equally helpful.

35 Where one gets to on analysis, however, as regards what is, or is not, a reasonable use of a right of way, essentially is ultimately to a factual question - to be resolved at a trial, upon the basis of taking account of all applicable evidentiary materials concerning essentially the issue of reasonable use - construed on the basis of what was in the reasonable contemplation of the parties at the time of the grant of (easement) rights.

36 Applying that analysis of the law to the facts of the present case, there first arises an issue of fact about whether or not all the land (ie, both the Dominant Land and the Servient Land) was at the time of the grant of the right of way, used for agricultural purposes.

37 That issue then has repercussions in respect of it being measured alongside what is foreshadowed by the plaintiffs as regards their proposed 'cellar door' operation from their vineyard, to commercialise the Dominant Land to some extent by that new operation as is foreshadowed, and in respect of which permission is currently being sought from the Shire of Busselton.

38 These issues, ultimately for trial, go to the nature of the dispute that is pending.

39 There is also another distinct question as to whether a court, in the exercise of what is, on the face of it, obviously a broad power under s 129C of the Transfer of Land Act might, irrespective of how it ultimately construes the ambit of the rights under the terms of the right of way granted (and hence its extent), nevertheless could go on further to use its broad powers under s 129C - to modify, vary or adjust those, as evaluated, easement rights - in circumstances where the necessary criteria, as set out in the Transfer of Land Act for a court's exercise of this power, have been (at the trial) satisfied.

40 Again this is all ultimately a matter for trial, but it is presently a matter opened up by the counterclaim of the defendant, which has set all these matters as pending.

41 On the plaintiff's part (as respondent to the application for the interlocutory injunction by the defendant), it relies upon an affidavit affirmed by the first-named plaintiff, which bears the date 15 June 2009 and which I have also considered.

42 The application for the interlocutory injunction arises in circumstances where, as is apparent from all the solicitor's correspondence appended to Ms Donald's first affidavit, the solicitors for the defendant in a long letter of 8 May 2009, over the course of some 75 paragraphs, fully explained the position adopted by the defendant as regards the right of way on the defendant's land and set out frankly where the defendant saw its rights, in the context of a looming trial and also in the context of a foreshadowed summary judgment application and other matters.

43 The defendant's solicitor's letter of 8 May 2009 concluded at pars 74 and 75, in these terms:

Some of the authorities dealing with easements and rights of way in particular suggest that the owner of the Dominant land, by a process of self-help can take steps to clear genuine obstructions on the Servient land. My client is extremely concerned that your client may contemplate taking steps to remove some or all of the trees in question.

Would you please let me have your clients' undertaking by 5 pm Monday 11 May 2009 that they will take no step, pending the disposition of the proceedings, to remove any trees on my client's land, failing which I reserve the right on behalf of my client to seek injunctive or other relief at the cost of your clients.

44 That communication brought forth a swift response from the solicitor for the plaintiffs, which is found at pages 43 and 44 of Ms Donald's first affidavit and in which the following was said, at par 10:

I refer to your paragraphs 74 and 75.

My clients will not seek to avail themselves of any self help remedies without my office giving your office not less than 14 days' prior written notice.

Would this alleviate your client's concerns and obviate the need for a pre-emptive injunction application by your client?

45 It seems that that response did alleviate concerns in the short term, but as it transpired, not in the longer term.

46 The defendant's defence and counterclaim, as I have said, was then filed and served on 27 May 2009.

47 What subsequently followed as regards the right of way, is best displayed in photographs that are appended to Ms Donald's first affidavit. Essentially, there have been grading works to and upon the right of way, carried out by the plaintiffs, which are seen starkly in CLD15 at page 76 of Ms Donald's affidavit and also at page 77.

48 Those grading works by the plaintiffs can also be seen as encroaching upon the green section on the northern side of the Servient Land in CLD18, at page 79 of Ms Donald's affidavit.

49 These grading works then led to further solicitors' correspondence, both by way of email and letter. I refer to page 51 of Ms Donald's affidavit, in which the solicitor for the plaintiffs wrote:

I have again taken instructions and have been assured that the maintenance work has been undertaken on 30 or 40 previous occasions. Indeed Mr Staley says he has done that work many times himself.

My clients deny that they have cleared away a metre of your client's land as alleged. They assume that you must be referring to a section of about 600 metres from Caves Road where the trees on the opposite side make the ROW even narrower, but I am assured that the maintenance that has been undertaken has been no different from what has been done in the past.

My clients agree, however, not to undertake any further maintenance work without giving your office not less than seven days' prior written notice

50 The solicitors for the defendant then responded at page 53 in these terms:

My client's position is as follows:

(1) My client does not accept that maintenance work has been undertaken on '30 or 40 previous occasions'.

(2) It is plain that your client cleared a metre of my client's land. I have been emailed photographs that show this plainly.

(3) This is different to any previous work that you described as maintenance. It is not coincidental that the day after service of my client's counterclaim, which clearly disclosed a claim to modify the right of way to the extent of the gravel track, your client unilaterally sought to widen the gravel track.

In view of the fact that your client has breached your previous written undertaking, my client requires your client to file an undertaking in the court to the effect contained in your letter. It simply isn't sufficient to have an undertaking as between the parties. My client wants an undertaking that is enforceable by a contempt application. Of course my client will give a cross-undertaking as to damages in the usual form.

51 Correspondence then continued back and forth between solicitors.

52 Essentially, the matter has not been able to be resolved by way of reciprocal undertakings.

53 I should observe that the solicitors for the defendant, in support of their application for the interlocutory injunction, did offer to provide an undertaking in similar terms, giving notice of any works by it, but upon the conditional basis of a receipt of an undertaking as to damages from the plaintiffs - which (regrettably) has not been forthcoming. I refer to Ms Donald's second affidavit of 15 June 2009 at page 16, par 7, subpars 7.1 and 7.2 which offers the undertaking of the defendant - in return for the usual undertaking as to the damages, from the plaintiffs.

54 The legal test applicable to the grant of interlocutory injunctions is well settled. This is not the trial of the action and I am not making any findings of fact by way of final determination.

55 The test I apply is set out in the reasons for judgment of Mason ACJ in Castlemaine Tooheys Ltd v State of South Australia [1986] HCA 58; (1986) 161 CLR 148. That case was in a public law context. However, Mason ACJ considered the principles applicable to interlocutory injunctions in general, as part of the conclusion that he reached. He said this at 153:

The principles governing the grant or refusal of interlocutory injunctions in private law litigation have been applied in public law cases, including constitutional cases, notwithstanding that different factors arise for consideration. In order to secure an injunction, the plaintiff must show (1) that there is a serious case to be tried or that the plaintiff has made out a prime facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will he held entitled to relief; (2) that he will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted and (3) that the balance of convenience favours the granting of an injunction.

56 Mason ACJ went on also to say, in regard to application of that test, at 155, that there was an interdependency, as between the question of the serious question and the assessment of the balance of convenience. His Honour said:

The decisions in this Court to which I have already referred demonstrate that there are a variety of situations in which the Court, on a proper balance of convenience, will restrain enforcement of a statute in aid of a plaintiff's constitutional right. In arriving at a balance of convenience the Court will take into account the seriousness of the conduct enjoined by the statute and the damage to the public interest that may be caused by restraining its enforcement.

57 In some cases, Mason ACJ said, the balance of convenience may be affected by the court's perception or evaluation of the strength of the plaintiffs' case, or invalidity.

58 In this matter, I am satisfied that the defendant by its counterclaim has raised an arguable case in respect of the 'narrowing [the right of way]' relief, if I can use that colloquial terminology, that it seeks by way of its counterclaim and also the permanent injunction that it seeks, in respect of the right of way, based upon either the alleged former wholly agricultural use of abutting lots 547 and 549, or on the question of whether, as time has gone by, it would now be a reasonable use of the Dominant Land for it now to be 'upgraded' to a more commercial purpose (ie cellar door) - than purely agricultural land. I refer again to paragraphs in Kennedy J's reasons for judgment in Timpar [35] to [37], as to that issue, which is also plainly a question of fact to be determined ultimately at trial.

59 I am also, as I have mentioned, empowered at trial under s 129C of the Transfer of Land Act, notwithstanding whatever the end position is assessed to be as a matter of pure construction concerning the extent of rights under this easement - to nevertheless exercise powers that could at the end of the day, modify the easement rights - where the criteria referred to in that section are met, and acting in the interests of justice.

60 It seems to me overall then, that the defendant has plainly made good a serious question to be tried, for trial.

61 Furthermore, I am satisfied that this is not a case where damages could ever be an adequate remedy to the defendant for an interference (between now and trial) with the right of way, by a derogation from either the trees, or the abutting vegetation concerning the (defendant's) vineyard, or whereby any of the adverse outcomes contended for by the defendant, ie, either as regards reduced amenity, dust, prevailing winds, salt or those other deleterious consequences that are referred to in the defence and counterclaim.

62 In my assessment, here any theoretical option of damages being an adequate potential remedy to the defendant, is completely inappropriate, to present circumstances.

63 I turn finally to assess the balance of convenience, doing so by reference also to what I assess as an interdependency - as between the balance of convenience and the strength of the defendant's case for ultimate success at a trial, on its arguments arising out of its counterclaim.

64 In the present case, on what is before me now, I put the strength of the defendant's case at an intermediate to high level, although its case is ultimately to be established at a trial, by reference to proved facts and a very considerable volume of facts to be proven will need to be adduced into evidence at the trial.

65 It is difficult until the facts are in, to measure the precise strength of the defendant's case for final relief.

66 Measured against that relative strength, is also then the fact that it is readily apparent from the photographs in Ms Donald's affidavit, that a number of the (tall) trees must have been in situ for a good number of years - even prior to the grant of the easement rights which are the subject of the right of way, ie, prior to the grant of the right of way/easement in 1997 and before either of these parties acquired their respective fee simple interests whilst the dominant-servient easement relationship as between them, continued.

67 In all these circumstances, it seems to me that there is a very strong and compelling case for the status quo as regards the right of way to be maintained as between now and trial, and so for it not to be unduly interfered with. I say that accepting that the plaintiffs, on the basis of what Kennedy J said at [41] of Timpar to which I have referred, would appear to have some right to repair the right of way, if required, from time to time. Nevertheless, that obviously is a repair right that has to be exercised reasonably in all circumstances, especially where litigation is pending.

68 In my assessment, the difficulties which have emerged from the plaintiffs' recent unilateral grading to the right of way, which occurred very proximately just after the filing of the defendant's defence and counterclaim, are extremely unfortunate, but highly relevant to my decision. In my view, those difficulties could likely have been avoided by reasonable conduct - by a giving of prior notice by the plaintiffs, foreshadowing what was in the contemplation of the plaintiffs, in terms of a proposed grading of the right of way by the plaintiffs.

69 There is such a temporal proximity as between the articulation of the defendant's case under its defence and counterclaim as filed, and the occurrence of that unilateral exercise in grading to the right of way without notice by the plaintiffs, in circumstances where the parties were plainly then in litigation over the right of way, that I do not think it is unreasonable for the defendant to now have concerns that a status quo which was plainly disturbed by that grading activity causing damage to its land, might be disturbed again in the future - in the absence of an enforceable undertaking given to the court (by the plaintiffs), rather than merely inter partes.

70 It does seem to me that the defendant has made good a threat, based upon the plaintiffs' unilateral grading conduct which has occurred.

71 It also seems to me that in those circumstances, it is reasonable for the plaintiffs to now accommodate the status quo until trial, and it might well have done so, as is commonly experienced in cases of this kind, by the giving of an undertaking to the court, which is then enforceable, if that undertaking is breached. That has not occurred.

72 Moreover, as I read the correspondence, which is extensive, passing between the parties through their solicitors, what I draw out of the correspondence emanating from the plaintiffs' solicitor, is essentially an exercise in wordplay - seeking to raise obstacles, rather than pursue, meaningfully, solutions.

73 That is regrettable. That attitude which I assess from the plaintiffs' solicitor's correspondence is unhelpful, and confirms me to a view overall, that it is here appropriate, particularly in circumstances where such an attitude prevails, that the Court intervene and seek to protect the position between now and trial - by the grant of an interlocutory injunction, in the terms sought by the defendant.

74 It seems to me that an interlocutory injunction in terms of par 1 of the defendant's chamber summons and as was modified in the defendant's submissions, will have the consequence of eliminating a prospect of the status quo concerning this right of way being further eroded, between now and the trial.

75 Its terms as formulated, also provide reasonable opportunity, where some work upon the right of way may need, for instance, to be carried out by reason of it becoming obstructed, say, for instance, by a tree branch or something of that kind, or it being eroded by heavy rain or it requiring an urgent grading, so as to make it safe for use, bearing in mind it is, of course, a private right of way; to be carried out. Public safety considerations can be accommodated, I think, through the giving of notice of proposed works upon the right of way.

76 Indeed had reasonable notice been given here of the plaintiffs' proposed grading works at the end of May 2009, then the situation arising, might have otherwise been addressed, in a way that would not have then excited the parties to a point where the degree of existing (mutual) mistrust is such that there is no other option, in my view, than for the court to intervene in interlocutory terms, between now and trial.

77 On that basis, I think it appropriate that an order for an interlocutory injunction be granted in the terms sought by the defendant.

78 I would typically have also been inclined to obtain a parallel cross-undertaking from the defendant, in similar terms. But such a course would be predicated I think (reasonably) upon the usual undertaking as to damages being received from the plaintiffs. From the extensive solicitors' correspondence, it is apparent that that is not offered here by the plaintiffs. So without that usual undertaking as to damages, I do not think it is appropriate here to seek to obtain a parallel undertaking from the defendant to the plaintiffs.