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[2017] VCC 1932
General information, not legal advice.
County Court of Victoria
2017-12-18
Eames J
Original judgment source is linked above.
1 I handed down reasons for judgment in this proceeding on 31 August 2017. For a number of reasons, it was inconvenient for the parties to argue about the form of final orders and costs until 27 October 2017.
2 The parties were directed to file and serve any affidavit material on which they relied together with an outline of written submissions in support of their respective positions.
3 Both parties contended that the major element of the hearing concerned the question of costs.
4 The defined terms in my earlier reasons for judgment have the same meaning in this judgment.
(a) Because he wholly succeeded in opposing Jennings' claim for adverse possession, costs should follow the event and he should recover all his costs on that claim.
(b) Jennings succeeded in his claim to an easement over a large part of the land initially identified for this purpose and the court could award him costs on that issue.
(c) In the circumstances of this case where there was a lengthy hearing and nearly all of Laming's witnesses would not have been called if the claim for adverse possession had not been made, it was appropriate to make separate orders for the costs of the successful party on each of the two primary issues. To make a global order for costs where only one party received an order in its favour as to a proportion of its costs was not a proper use of the discretion here because it would cause injustice to Laming given the expense he incurred in the case and his success on the issue of adverse possession.
(d) However, if the court were minded to make a global order, it should order Jennings to pay 75% of Laming's costs. This was said to be justified due to Jennings' "overwhelming failure" in the proceeding and the extent of the costs incurred by Laming in relation to "the claims on which the defendant wholly failed in comparison to the costs and time spent on the subsidiary easement claim which succeeded".
6 Laming noted that apart from the claims regarding adverse possession and the easement, the defendant sought leave in September 2016 to amend his counterclaim to seek an injunction relating to Laming's use of, and for the removal of, the waste treatment system he installed. Jennings abandoned this claim at trial. Although it did not occupy any court time at the hearing, Laming contended that he incurred costs in amending his reply and defence to counterclaim to address the point and corresponding with Jennings' solicitor about the matter. Laming argued that he should get his costs on this part of the claim including any costs thrown away due to the amendments and the reserved costs.
7 Laming also claimed the costs of proving matters the subject of two Notices to Admit which were served on Jennings. Laming contended that notwithstanding a formal Notice of Dispute was not filed and served until 7 October 2016, he successfully proved many of the disputed facts and hence, claimed he should recover those costs in accordance with Rules 35.06 and 63A.18 of the County Court Civil Procedure Rules 2008 (Vic).
8 As part of his submissions, Laming provided the court with several annexures. Annexure A summarised the issue on which a witness was called and the time spent in evidence at the trial. Annexure B summarised the time taken by each side with witnesses and topics at the trial. Annexure C set out the number of transcript pages and time spent at trial on the adverse possession claim only, the easement claim only and both claims together. Laming summarised the position as follows. He said that the review of the transcript and hearing time revealed that:
9 Jennings submitted that the critical issue in the case was the extent to which, if at all, he was entitled to rights over the land of which Laming was registered proprietor. While Jennings acknowledged that a successful adverse possession claim gave him more extensive rights, nonetheless the easement claim also gave him significant rights over the disputed land - especially in circumstances where Laming denied that Jennings had any right whatever to use, and be present upon, any part of his land. In that context, Jennings submitted that, in accordance with the usual rule in litigation, costs should follow the event and he should recover his costs on a standard basis.
As a general rule costs should follow the event, and a successful party should obtain all of the costs of the action even although it failed to establish some of the alternative heads of its claim: Ritter v Godfrey.
11 Jennings conceded that the court has a broad discretion as to costs and could withhold costs for part of his claim or order him to pay Laming's costs where, for example, he failed to establish a discrete head of claim or failed to establish issues which he pursued in his claim. However, Jennings argued that the court should not adopt this more unusual approach because there was a significant overlap of the factual material in both claims and there was no proper or sufficient justification to exercise the discretion against him in this way.
12 In GT Corporation Pty Ltd v Amare Safety Pty Ltd,[3] Robson J undertook a thorough review of the many cases regarding costs in a litigious context. I gratefully adopt his summary of the general principles in which he said:
"Based on these authorities, the general principles relevant to GT's application in relation to costs are as follows.
13 In this case, Jennings has succeeded in establishing an entitlement to an easement over part of Laming's land. While Jennings failed to make good his claim to adverse possession, he nonetheless proved his claim regarding the easement. The benefits to Jennings of the easement, while not as far reaching in their effect as ownership through adverse possession, were nonetheless significant. It was apparent from the evidence and how the trial was conducted that Laming considered Jennings had no right or entitlement in relation to the Disputed Land of which Laming was registered proprietor. From Laming's perspective, Jennings was nothing but a trespasser. The only way in which Jennings could obtain recognition of any rights was through litigation.
14 Laming claims that he should recover his costs of the adverse possession claim because he was wholly successful on that part of the case. His argument was to the effect that his entitlement arose simply from his success on that point. But in my view, this represents an oversimplification of the position. The fact that a successful party in a trial has failed on a disputed question of fact or law does not, of itself, entitle the other party to its costs on that issue.[4] In Cretazzo v Lombardi,[5] the Full Court of the South Australian Supreme Court considered the court's jurisdiction to deprive a successful party of part of his costs and to order that a successful party pay part of his opponent's costs. Jacobs J noted that often a party who is wholly or substantially successful in a case fails on particular factual or legal issues. His Honour said that the ends of justice might not be served if a party is dissuaded by the risk of costs from canvassing all issues which might be material to the outcome of a case. His Honour said that he did not wish to encourage the view that a losing party at trial could anticipate a favourable ruling on costs in relation to any issue on which he succeeded, based merely on that success. Some judges have supported that view,[6] while, more recently, others have queried whether it represents the current view.[7]
15 In my opinion, where a trial has mixed results, the issue of apportionment is very much a matter of discretion for the trial judge. Trying to determine costs orders and make allowances for the variety of matters which occur in a trial is an imprecise exercise which does not permit of mathematical precision. It is a reflection of a judge's best efforts to arrive at an outcome which recognises the entitlements of the parties having regard to all the circumstances of the case, including the ultimate outcome and the various issues dealt with. It is not normally achieved purely by counting pages of a transcript or submission, or references in a court book comprising perhaps hundreds of pages.
16 Although Jennings lost on the adverse possession claim and that issue undoubtedly lengthened the trial, I did not regard Jennings' conduct as unreasonable or inappropriate. I note that Laming did not characterise Jennings' conduct in this way. Given the confidence which Laming showed in his case on this issue, it was a matter of some surprise that Laming had not written to Jennings before the trial making an offer on this issue which might have afforded him a stronger argument on the question of costs.
17 While Laming submitted that determining costs was not merely an arithmetic exercise, his submissions, and especially the annexures thereto, appeared to conflict with this approach. Laming drew attention to Jennings' defence and counterclaim where he said that almost all the paragraphs addressed issues concerning the adverse possession claim and the easement claim was more of an afterthought or fall-back position. I accept that the majority of the pleading was referrable to the adverse possession claim. However, it was equally clear from paragraphs 6A and 12 of the defence and counterclaim that Jennings relied on many of the same factual matters raised in the adverse possession claim to make good the easement claim. The easement claim explicitly relied upon paragraphs 3A to 3I inclusive of the defence. These paragraphs formed part of the adverse possession claim.
18 Doing the best I can to achieve a fair outcome having regard to the circumstances of the case, I consider that:
(a) because Jennings succeeded against vigorous opposition in establishing an entitlement to an easement over a substantial part of the Disputed Land, prima facie, he should recover his costs of the proceeding.
(b) it is reasonable to make an allowance in favour of Laming to take account of the fact that Laming succeeded and Jennings failed on the adverse possession component of the case. This was one of two important issues in the case. If it had not been pursued, there would have been fewer witnesses called and the case would have been shorter.
(c) although Jennings lost the adverse possession claim, he did not conduct himself or his case inappropriately or unreasonably. Because of this and because of the overlap between the adverse possession claim and the easement claim in terms of the material which Jennings relied upon under both heads, Jennings ought not be required to pay Laming's costs on the adverse possession claim.
(d) nonetheless, the court is entitled to recognise the success of Laming on the adverse possession issue and the extra time and cost this claim added to the trial. Also, it is proper to recognise that Jennings did not pursue at trial the injunction regarding the waste treatment system. Accordingly, Jennings should not recover the whole of his costs of the proceeding.
(e) a reasonable apportionment is to allow Jennings to recover 60 per cent of his costs of the proceeding, such costs to be taxed on a standard basis in default of agreement.
19 In reaching this conclusion, I have not overlooked the fact that Laming served upon Jennings two notices to admit dated 24 February 2016 and 26 September 2016 respectively. The first notice to admit was detailed and canvassed about 70 alleged facts. The second notice to admit concerned approximately 16 alleged facts and 42 documents.
20 Jennings correctly observed that the notices to admit raised several issues. First, a number of the alleged facts were not mere facts but raised questions of law or mixed fact and law. For example, there were propositions regarding the ownership of goods, the transfer of title of goods and the acknowledgment of title.
21 Secondly, other matters were simply not proven. For example, it was said that between 1984 and March 2000, the Australian Telecommunications Authority and/or Telecom and/or their agents and contractors regularly drove upon the Disputed Land to get to and from the telecommunications tower. Also, there were a number of propositions in the notice with respect to the conduct of Matt Gabelich between December 2009 and August 2015. Gabelich did not give evidence and the evidence about his behaviour given by others was notably more limited than the contents of the notice.
22 Finally, a significant number of the matters the subject of the notices to admit were central parts of Laming's case. Notices to admit are not intended to provide a mechanism whereby the factual substratum of a party's case can be challenged and, if the challenge is successful, for indemnity costs to be payable.[8] Where the alleged facts in a notice to admit deal with events at the heart of the proceeding, they should not be the subject of admission but should be proved by evidence and properly tested.[9] The notices to admit were not proper notices and on this basis alone should not be given effect to.
23 When this factor is considered together with the other two issues, I find that Laming was not entitled to the cost of proving those matters (if any) set out in the notices to admit which he did prove at the trial.
24 In his submissions, Laming set out the following as the final orders which he sought to give effect to the judgment:
(a) The court declares that the plaintiff is entitled to possession of the whole of the land described in Certificate of Title Volume 11334 Folio 624 and known as 4 One Tree Hill Road, Ferny Creek, Victoria 3786 ("the Property").
(b) The court declares that the defendant has not acquired title to any part of the property by adverse possession.
(c) That part of the defendant's counterclaim seeking a declaration that he has acquired title to part of the property by adverse possession is dismissed.
(d) That part of the defendant's counterclaim seeking an injunction to enjoin the plaintiff from using and requiring him to remove his water treatment system is dismissed.
(e) The court declares that the defendant has trespassed on part of the property.
(f) The defendant pay the plaintiff damages in the sum of $1.00.
(g) The defendant is entitled within 28 days to remove all fixtures and chattels hitherto installed in or placed on the property by the defendant and the defendant shall repair any damage to the property caused by such removal at his cost. Thereafter any such fixtures and chattels shall be deemed abandoned by the defendant and title thereto shall vest in the plaintiff.
(h) The court declares that the fruit trees and clothesline situated on the property are the plaintiff's property.
(i) The defendant pay the plaintiff's costs of and incidental to the plaintiff's claim and that part of the defendant's counterclaim seeking a declaration that the defendant has acquired title to part of the property by adverse possession, including reserved costs, on a standard basis.
(j) The defendant pay the plaintiff's costs of and incidental to the defendant's claim for an injunction to enjoin the plaintiff from using and requiring him to remove his water treatment system, including reserved costs, on a standard basis.
(k) The defendant pay the plaintiff's costs incurred in respect of the subpoenas of the plaintiff's witnesses in the proceeding and the costs of preparing their proofs of evidence and serving the subpoenas (save and except Julian McKernan) on a standard basis.
(l) The defendant pay 85 per cent of the costs, preparation and copying of the court book on a standard basis.
(m) The defendant pay the plaintiff's costs of proving the facts set out in the plaintiff's notices to admit dated 24 February 2016 and 26 September 2016 which were disputed by the defendant in his notice of dispute dated 7 October 2016 and subsequently proved as set out in Annexure A to these orders on a standard basis.
25 For his part, Jennings sought the following declarations:
(a) The land marked "A" in the attached plan of easement, within the registered title boundaries of 4 One Tree Hill Road, more particularly described as Certificate of Title Volume 11334 Folio 624, is burdened by an easement in favour of 2 Merimbula Road, Ferny Creek in the State of Victoria, more particularly described as Certificates of Title Volume 9939 Folio 326 and Volume 8345 Folio 110, for the purposes of recreation.
(b) The easement may be exercised by the registered proprietor of the dominant tenement alone or with invitees or by invitees alone.
(b) The plaintiff pay the defendant's costs of the proceeding, including reserved costs, on a standard basis to be taxed in default of agreement.
27 The declaration sought about Laming being entitled to possession of the whole of the 4 One Tree Hill Road property is not necessary. Laming is the registered proprietor of that land. On the grounds set out in my reasons of judgment, I have found that part of the property is encumbered by an easement in favour of Jennings. Because there was no finding of adverse possession in Jennings' favour, the only remaining question of note was whether there was an easement. Declarations are discretionary remedies and in my view, there is insufficient reason to warrant the making of the order sought. Jennings lost the adverse possession claim. There is no basis for any suggestion that Jennings is entitled to exclusive possession of any part of Laming's land.
28 In circumstances where the reasons for judgment set out at some length why I have found against Jennings on the claim for adverse possession, I consider it appropriate to make a declaration to that effect. Having done this, I do not consider that I need expressly to dismiss that part of the counterclaim in which Jennings sought a declaration regarding adverse possession. The reasons for judgment are sufficiently explicit on the point.
29 Again, because Jennings did not persist at trial with an application for injunction requiring Laming to remove his water treatment system from the property, it is unnecessary to make any order with respect to that matter. It did not form an active issue in the trial.
30 Given my findings with respect to trespass and the award of damages in Laming's favour in respect of that trespass, I see no need for, or utility in, also making a declaration with respect to that issue. The order for damages is enough.
31 As to the order sought by Laming in paragraph 24(g) regarding removal of fixtures and abandonment, I do not consider that this matter was the subject of any, or any proper, argument before me. The issue of abandonment of fixtures or chattels was not addressed in any detail if at all. There was ample time and opportunity given to the parties to make submissions in this case. I do not propose to make orders about matters which the parties chose to treat as insignificant. If abandonment were a major issue, it ought to have been the subject of detailed argument.
32 Laming did not seek to make any submissions about the form of declaration sought by Jennings in relation to the easement. But he did make several points regarding the scope of the easement:
(a) Laming objected to any order allowing Jennings as the owner of the dominant tenement to store on the servient property fixtures, chattels and wood because this would impinge unduly upon Laming's possession and enjoyment of his property.
(b) Laming also objected to Jennings having permission to burn off on the land the subject of the easement. He said that this amounted to allowing Jennings to damage Laming's land and such a usage could interfere with, and create risk for, Laming's (and his tenant's) use of the property.
(c) Laming submitted that, in Jennings' pleading and at trial, Jennings sought an easement of recreational use over the backyard area within Laming's property. Laming objected that the declaration now sought by Jennings went beyond what was sought in the proceedings. He contended that the court should not allow this to occur.
(d) Laming contended that any enjoyment of the easement should be limited or restricted to Jennings as the registered proprietor and not extend to invitees.
33 The essence of Jennings' claim to the easement is that, over a period of more than 20 years, the Howards and then Jennings and his family used part of the Disputed Land as their backyard. This usage entailed the varied sorts of activities which commonly occur in the backyard of the family home. The families maintained the area like a garden area by cutting the grass and clearing and burning green waste; they planted and maintained trees; they played games and engaged in different forms of recreational activity such as sports and having a coffee while reading; they entertained family, friends and neighbours.
34 Two things which might not be so common but were not unusual at the particular location in Ferny Creek was the burning off of green waste and the storage of firewood. The former was an incident of the substantial bush area comprising the Telstra Property in circumstances where the residents of Ferny Creek had to be vigilant regarding the risk of bushfires. The latter reflected the fact of the cold winters experienced in the Dandenongs and the prevalence of wood burning fires in residents' houses over the winter months.
35 While the prayer for relief might have referred to an easement for recreational use, I regard that as a general description designed to cover the use which the Howards and Jennings made of the Disputed Land (of part thereof) in and after 1986.
36 In the context of the scope of the easement, the parties were largely silent in that neither referred me to helpful authority such as decided cases or authoritative texts. Their contentions were put more as assertions rather than guiding principles of law which had a solid foundation in precedent. That parties would take such an approach to litigation is disappointing because the court relies upon and expects assistance from counsel in resolving the difficult issues which come before the court. This is especially so in more unusual cases or those like the present which involve more unusual facets of the law.
37 Laming objects to any order giving Jennings the right to burn off on his land as doing so may 'interfere or provide risk and hazard' to him and his tenant's use of the Telstra Land.
38 Halsbury's Laws of Australia provides:[10]
An easement may be created which gives the grantee a right to use the dominant tenement in a manner which would create a private nuisance to the servient tenement. Examples of such easements include grants giving the right to discharge smoke over the servient tenement, the right to pollute a stream or the right to discharge polluted water over a neighbour's land. Unless the right is carefully defined and limited it may be regarded as too vague and indefinite to be the subject of an easement.
Accordingly, an easement which contemplates a right to continue to burn off on Laming's land does not appear problematic even if it might constitute a private nuisance due to the creation of smoke in the surrounding area.[11]
39 With regard to the plaintiff's objection that such a right creates a hazard, I do not consider this to be a major issue. First, the evidence showed that Jennings was diligent in maintaining the edges of the fire pits used for burning off. Secondly, Jennings had substantial experience as a fire officer in the CFA. Thirdly, there was no evidence of any outbreak of fire arising from the fire pits in the time since the Howards moved in.
40 I therefore do not consider that the easement should restrict Jennings from burning off vegetation on Laming's property as he has done since he moved in.
41 This outcome is also consistent with the history of use of the Disputed Land outlined in my earlier reasons for judgment. I referred in the reasons for judgment to the use which the Howard and Jennings families made of the Disputed Land. Because it was this usage which gave rise to the easement, it seems to me that the owner of the dominant tenement should be able to continue using the servient tenement affected by the easement in the same way as previously. Hence, if this is correct, the activities contemplated by the easement include burning green waste and playing on part of the Disputed Land, not only with immediate family members but also with less immediate family and third parties invited to the property.
42 I consider that it would be unfair and unrealistic to insist that the rights associated with the easement were exercisable only when Jennings was present. This would mean, for example, that his children could not play on the easement area after school without him, and that friends or relations could not be present on the easement area if Jennings were not present. The benefit of the easement should extend to Jennings' immediate family, that is, his wife and children, and to other people invited by Jennings to be present in his backyard.
43 Laming also objects to any order granting an easement that would allow Jennings to store, either temporarily or permanently, fixtures, chattels or wood on his land. He claims that such a provision would unduly impinge on the owner's possession and enjoyment of his land.
44 Whether or not Jennings has the right, as dominant tenement owner, to install fixtures and store chattels commonly associated with the enjoyment of land as a 'backyard', requires some analysis of the ancillary rights in connection with the easement he has acquired.
45 It seems to be established in Australian law that an easement can comprise a right of recreation.[12] However, there appear to be few cases that deal in detail with the ancillary rights connected with an easement of this kind, such as the rights to tend to a garden, attach fixtures or store items.
46 An English case that bears some similarities to the present case is Jackson v Mulvaney which is discussed in the leading text on this area, Gale on Easements:[13]
The Court of Appeal in Jackson v Mulvaney [2002] EWCA Civ 1078; [2003] 1 WLR 360 applied the decision in Re Ellenborough Park in a case which well illustrates the principles discussed in this section. In that case, cottages were built around a small yard, intended originally to accommodate outside lavatories and coal sheds and the means of access to those facilities. With the coming of improved sanitary arrangements and central heating, these facilities became redundant and the yards in time were converted to gardens tended on a co-operate basis by the surrounding householders. Without warning, the owner of the yard/garden grubbed up a flowerbed and a grassed passage in order to lay a gravel surface with a view to creating an access to neighbouring land. One of the householders sued claiming a right to cultivate the garden. The Court at first instance declared that she was entitled to reinstate and maintain her flowerbed and awarded her damages. The owners of the yard appealed contending (a) that the right claimed was too extensive to be capable of being the subject-matter of a grant of easement, and (b) that such an easement could not in any event be acquired by prescription.
The Court of Appeal analysed the situation as follows:
(1) the right to enjoy the land as a communal garden was a right that was capable of subsisting as an easement provided that there was the necessary connection between the dominant and servient tenement;
(2) the fact that the owners of the dominant tenement had in fact maintained the garden did not as a matter of law mean that the servient owner had been excluded from using it;
(3) the dominant owners had simply been carrying out that which they were entitled to do, namely such works as were necessary to enable them to enjoy the right to use the garden as such;
(4) the servient owners retained the right to enter the garden area and do whatever they wished on it provide that such acts did not destroy or detract from the character of the area as a garden which could be enjoyed by the dominant owners;
(5) the servient owner was entitled to remodel the garden but only upon giving reasonable notice, putting forward reasonable proposals (which maintained the character of the area as a garden) and for good reasons;
(6) as to whether such an easement can be acquired by prescription, while in the absence of an express grant the Court has the more difficult task of assessing the evidence as to alleged use in order to determine whether the claimed right has been established, nevertheless if it is clear from that evidence that use has been made of the land for the requisite period which is capable of amounting to an easement, the Court should not be deflected from declaring the existence of an easement which can be sensibly formulated.
The Court, however, held that the right created by the proved use only restricted the use which the servient owner could make of the land to the extent necessary to ensure that the garden could still be enjoyed by the dominant owners as a communal garden; the declaration by the trial judge that the claimant was entitled to restore the flowerbed in its original position was wrong, albeit that the act of removing the flowerbed without notice had been unlawful. Whether any particular proposal by the servient owners to create a driveway through the garden would substantially interfere with the dominant owner's rights was a question of fact. The Court therefore substituted for the declaration made by the trial judge a declaration that the claimant was entitled to a right to use the land in question as a communal garden for recreational and amenity purposes. The Court stated that this would inevitably require the servient owners, if they wish to carry out any works on the land in question, (a) to do so in a way which would substantially maintain its character of the communal garden and (b) to demonstrate that any proposed work would maintain that character; in practice this was likely to require prior consultation and preferably agreement if not to amount to a significant interference with the respondent's rights.
47 The authors summarised the effect of Mulvaney as follows:[14]
Mulvaney extends the decision in Re Ellenborough Park to a case where (a) there was no express grant; (b) there was no obligation by the servient owner to maintain the areas a garden or any obligation by the dominant owners to pay for the cost of maintenance; and (c) the dominant owners were claiming not merely a right to enjoy but a right to cultivate as ancillary to the right to enjoy as a garden. These rights, while undoubtedly extensive, were nevertheless not exclusive, because the servient owner was still entitled to do things on the land which would not detract from its character as a garden, such as forming a gravelled driveway.
48 As to the question of Jennings putting or storing chattels or wood on the servient tenement, again the guiding light should be the use made of the land since about 1986 which gave rise to the easement.
49 The Howards gave some evidence about their use of an outdoor table and chairs. They were located on Laming's land. Wendy Howard, whose testimony I accept, said that the picnic table was in the backyard from "very early on" - as soon as they cleared the cotoneaster trees which were at the rear of their property where it abutted Laming's property. This clearing of the boundary area together with the substantial removal of the concrete and wire fence, blackberries and other shrubs and rubbish, took place within a year or two after the Howards moved in. The furniture was used by members of the Howard family for their own needs as well as entertaining family and friends.
50 Jennings followed in his predecessors' footsteps by having outdoor furniture located on Laming's land. Because the owners of 2 Merimbula Road made this use of Laming's land for an extended period from the late 1980s to 2015 without complaint, I consider that this use of the backyard area should be permitted to continue. Hence, in my opinion, the easement contemplates that Jennings can continue to have the outdoor furniture located on that part of Laming's land the subject of the easement.
51 Similarly, with the firewood stack, there was evidence of the Howards stacking wood or having some form of wood pile on the Disputed Land from around the time that they removed the cotoneaster trees from the rear of their property. While some wood which they bought from time to time was stored beneath the car port at the front of the Howards' property, the remnants of the cotoneaster trees and other trees which died or fell down on the Telstra land were chopped up and stored on the Disputed Land. Glenn Howard said that the pile of wood was near where the clotheslines was located once it moved to the backyard area on the Disputed Land. The Howards also used one of the old water tanks lying on its side to cover the wood and some protection from the elements. Jennings continued this conduct by also storing wood on the Disputed Land.
52 It appears that there was long-term usage of the Disputed Land to store firewood. This matter was not explored in detail at the trial but, as I apprehend it, there was no dispute that wood was stored on the Disputed Land by people living in Merimbula Road. This included the Howards, Jennings and Darrell Jolly.
53 In the circumstances, I consider it appropriate that Jennings be permitted to continue storing firewood on the land the subject of the easement.
54 In summary, the Howards and Jennings used the area of the Disputed Land subject to the easement in and after 1986 as a backyard. It represented an extension of the house property at 2 Merimbula Road and, for practical purposes, was effectively treated as a part of that property. That is why the Howards called it their backyard and why Jennings treated it as such.
55 It is against that factual background that I say that my characterisation of the easement contemplates or includes use of the area the subject of the easement for activities such as the cutting of the grass, the clearing and burning of green waste, maintaining and enjoying the trees, playing games and sports, engaging in general recreational activity including entertaining family and friends.
56 After the hearing on 27 October 2017, the parties were invited to make written submissions on whether Mulvaney was relevant to the form of final orders in the proceeding. Laming elected not to make any further submissions, being content to rely on submissions already made to the court. Counsel for Jennings however, made some brief written submissions which I summarise as follows:
(i) an easement for a communal garden arising by prescription does not exclude the registered proprietor;
(ii) an easement for a communal garden must have its character retained. However, specific features are not protected so long as any alterations by the servient tenement owner do not substantially interfere with the easement, are reasonable, and are made with reasonable notice;
(i) Laming's claim that he had been excluded was not pleaded and not raised in the proceeding until its closing submissions in reply;
(ii) the inherent nature of the Jennings' use of the land was not such as to exclude Laming in any event;
(c) with respect to the second principle, because Jennings' proposed order does not seek to resolve any particular proposal regarding the use of the easement, it is in accordance with Mulvaney.
57 On 4 December 2017 Megan Copas, the solicitor for Jennings, informed the court by email that a minor error had been identified on the Plan of Creation of Easement submitted to the court along with the defendant's proposed orders. The Plan had since been amended by the defendant's land surveyor to correct the minor error ("Version 2"). On 11 December 2017, Ms Copas further informed the court that the plaintiff did not take issue with Version 2 of the Plan.
58 Accordingly, I propose to make the following declarations:
(a) The defendant has not acquired title by adverse possession to any part of the land described in Certificate of Title Volume 11334 Folio 624 and known as 4 One Tree Hill Road, Ferny Creek, in the State of Victoria.
(b) The land marked "E-1" in the attached plan of easement dated 10 October 2017, within the registered title boundaries of 4 One Tree Hill Road, more particularly described as Certificate of Title Volume 11334 Folio 624, is burdened by an easement in favour of 2 Merimbula Road, Ferny Creek in the State of Victoria, more particularly described as Certificates of Title Volume 9939 Folio 326 and Volume 8345 Folio 110, for the purposes of recreation. The permitted usage includes burning green waste and storing domestic firewood.
(c) The easement may be exercised by the registered proprietor of the dominant tenement alone or with invitees or by invitees alone.
(d) The defendant pay the plaintiff damages in the sum of $1.00.
(e) The plaintiff pay 60 per cent of the defendant's costs of the proceeding to be taxed on a standard basis in default of agreement.
[1] (Unreported, Supreme Court of Victoria, Eames J, 24 April 1995).
[4] FAI General Insurance Co Ltd v McSweeney [1998] FCA 356, Lindgren J.
[6] Toohey J in Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 40-748 at 48, 136; Tadgell and Eames JJA in State of Victoria v Master Builders Association of Victoria [1995] VicRp 47; [1995] 2 VR 121.
[7] Newnes J in Mickelberg v Western Australia [2007] WASC 140; Bergin J in Leading Edge Events Australia Pty Ltd v Kiri Te Kanawa (No 2) [2007] NSWSC 568.
[8] Millane v Nationwide News Pty Ltd [2004] NSWSC 1023 at [20].
[9] McGuirk v University of New South Wales [2009] NSWSC 616 at [20].
[10] LexisNexis, Halsbury's Laws of Australia, 355 Real Property, 'Easements to create a nuisance' [355-12105].
[11] I note that there was no specific complaint about smoke. Laming's objection was more fundamental.
[12] See City Developments Pty Ltd v Registrar-General (NT) [2001] NTCA 7 at [18] where Angel J (with whom Martin CJ and Bailey J agreed), citing Halsbury's, says, "It is now, I think, also clearly established that a right of recreation may be the subject of a valid easement".
[13] J R Gaunt and P Morgan, Gale on Easements (20th ed, 2017), [1-71].
[14] J R Gaunt and P Morgan, Gale on Easements (20th ed, 2017), [1-71].
Laming
Jennings