Ross Bilton & Ors v Georgia Ligdas

Christine Kensworthy (2nd Defendant) Executor of the Estate of the late Brian Holbache (3rd Defendant) Colleen Earl (4th Defendant) Gerald Michael Carr (5th Defendant) Joanne Crews (6th Defendant) Margaret Morrell (7th Defendant) Robert Morrell (8th Defendant) Representation: Counsel: G.A Moore (Plaintiffs) J.M Ireland (1st Defendant)

Solicitors: Kreisson Legal (Plaintiffs) Mavrakis & Associates (1st Defendant) Defendants 2-8 Submitting Appearance File Number(s): 2014/319743 Publication restriction: NIL

Judgment

1. These proceedings concern a number of properties in Phillip Street Balmain, New South Wales. The first and second plaintiffs Mr Bilton and Ms Weaver own No. 35 Phillip Street. Mr and Mrs Dwyer own No. 39 Phillip Street. Mr Hudson owns No. 41 Phillip Street. Mr Moore of Counsel appears for the plaintiffs ("the Plaintiffs"). Mrs Ligdas, the first defendant, owns No. 31 Phillip Street. Mr J. Ireland appears for Mrs Ligdas.
2. The Plaintiffs' properties, together with the property at No. 37, have behind them a passageway which the parties describe as the Church Street Passageway ("the CSP"). The CSP runs north to south (approximately) and extends beyond the Plaintiffs' properties. The CSP extended at its northern end beyond the rear of No. 35-41 as well but a number of years ago the small area of land at the rear of No. 43 Phillip Street was taken up by the owner of No. 44 Church Street.
3. Between No. 31 and No. 35 there is currently a passageway running the entire length of the boundary between those properties starting at Phillip Street. At its eastern end it joins up with the CSP. This passageway, which the parties refer to as the Ligdas passageway ("LP") was 1.8 metres from 1937 when it was first created until 2009 when Mrs Ligdas narrowed it by removing the existing fence and erecting a new fence closer to the boundary of her property than the pre-existing fence. The new fence, which was also six inches higher than the pre-existing fence, narrowed the LP from 1.8 metres to 1.2 metres. There are three photographs of the LP at Exhibit A2 p.390-392. In August 2012 Mrs Ligdas removed the unlocked gate that was in place at the entrance to the LP in Phillip Street and replaced it with a new gate which she locked. She also had installed and locked a gate at the conjunction of the LP and the CSP. Mrs Ligdas made these changes without any consultation with any of the owners of any of the Church Street or Phillip Street properties which abut the CSP. Mrs Ligdas's explanation for the locked gate was that she is sensitive to movements along the LP and feels that her home is "vulnerable to opportunistic intruders" (see para 50(a) of her affidavit).
4. There is no issue that since August 2012 Mrs Ligdas has precluded the Plaintiffs from using the LP. Mrs Ligdas did arrange keys for the owners of the four Church Street properties that would enable those Church Street owners to access the LP. There is no dispute that the Dwyers and Mr Hudson had been using the CSP and the LP to take "wheelie bins" kept at the back of their property through the CSP and then the LP to the front of their houses in Phillip Street or that Mr Bilton and Ms Weaver had been making use of the LP for the same purpose. There are uses which the Plaintiffs (and the owner of No. 37) have wished to make of the LP such as access for repairs to the rear of their property for which, since 2012, Mrs Ligdas has required them to seek her permission. In October 2014, it became necessary to remove a tree from the back of No. 37. The tree was cut up and permission by the owner of No. 37 was sought from Mrs Ligdas to allow access and access was not permitted for some three months: see Exhibit A p.272, p.367, p.373, p.382, p.386.
5. The Plaintiffs accept that the LP is located on the registered land of Mrs Ligdas. They assert that: 1. No. 31 is burdened by an easement as a matter of construction of the grant of Lot B in 1937 ("the Express Easement"). 2. No. 31 is burdened by a prescriptive easement by virtue of the use of the passageway over a period beyond 20 years ("the Prescriptive Easement"). 3. If neither of the assertions in (a) and (b) above is accepted, they contend that an easement should be granted to them pursuant to s.88K of the Conveyancing Act 1919 (NSW) ("s.88K easement").

The History of the Properties

1. There is broad agreement as to a number of historical matters: 1. The cottages on Church Street were built in the 1870's and 1880's and the cottages in Phillip Street (including the first defendant's cottage) were built in the mid-1890s. 2. The CSP was created as a "dunny lane" for the cartage of night soil and would have been used as such until the mains sewer was laid and connected. The cottages all had, and No's 39 and 41 still have, outside toilets located in the corner of the respective property next to the fence adjoining the CSP. Connection of the properties to the sewer appears to have been made in 1899 or soon after: see Exhibit A1 p.201 and A2 p.451. 3. As at 1937 all of the cottages in the relevant section of Phillip Street and Church Street were located on one old system title but in 1937 the then owner, Permanent Trustee Co Pty Ltd as trustee, subdivided the estate into three lots, Lots A, B and C: see the plan of subdivision registered on 22 June 1937 Exhibit A1 p.202. In July 1937 Lot B was sold and later Lot C was sold to another purchaser. The conveyance by Permanent Trustee to the purchaser of Lot B contained the following words (see Exhibit A p.203): BUT reserving unto the Vendor its successors and assigns and their respective tenants, servants, visitors, tradespeople and others authorised by it them or any of them a right of way in perpetuity over the passageway leading from Phillip Street to a passage way running at the rear of other land belonging to the Vendor and fronting Church Street as a means of access to from and between Phillip Street and the said passage way at the rear of such other land for all foot passengers, horses and other animals carts carriages motors and other vehicles laden and unladen at all times by night and by day over the said passage way leading from Phillip Street which passage way is described as follows AND IT IS HEREBY AGREED AND DECLARED (a) That the land to which the benefit of the said right of way is appurtenant is the said other land owned by the Vendor and fronting Church Street Balmain and the passage way running at the rear thereof, (b) The land which is to be the subject to the burden of the said right of way is the land lastly hereinbefore described. 1. Subsequently the owner of Lot B subdivided Lot B and separate old system titles were created for each of the cottages that were located on Lot B, one of which was No. 31 Phillip Street. The property on which No. 31 was located was sold to Mrs Ligdas's late husband in 1958. 2. The Phillip Street cottages including No's 35 to 43 were part of Lot A and in 1951 individual lots for each of these cottages were created and sold off. 3. At some stage after that the owner of Lot C subdivided Lot C and created separate titles for each of the Church Street properties with easements and cross easements over the rear of these properties to permit the owners of the Church Street properties to use the CSP and access the LP. 4. There is no dispute that Mrs Ligdas's property (No. 31) is burdened by easements in favour of various Church Street properties. The relevant Church Street owners are defendants in these proceedings (in addition to Mrs Ligdas). Those Church Street defendants have however reached an accommodation with the Plaintiffs. They have agreed that if the Plaintiffs are successful in obtaining an easement, or establishing an easement, over the LP they will grant an easement to the Plaintiffs to utilise the CSP (or more accurately the individual components of the CSP which they each own), and they have therefore taken no active part in these proceedings. 5. Mr Bilton and Ms Weaver purchased No. 35 in late 2011 and settled the transaction in early 2012. No. 35 was sold to them by Mr Rob Pillans. Mr Pillans had bought the property from a Mr Reece who had purchased from a Mr Ken Latta who had in turn purchased from a Mr Hudson (not the third plaintiff). 6. Mr and Mrs Dwyer purchased No. 39 Phillip Street from a Mrs Arnold. Mrs Arnold's husband had purchased the house in 1960. After Mr Arnold and Mrs Arnold divorced Mrs Arnold continued living in No. 39 until 1999. Her daughter, Ms Stapleton (as she became) had lived there with her mother and father in her youth (she was born in 1958), and visited her mother regularly once she had left home. 7. Mr Hudson, the owner of No. 41, bought the property in 1999 from a Mr Armstrong. 8. The present owner of No. 43 is not a party to the proceedings- she purchased the property from Mr Warren Williams who inherited it from his father Mr George Williams. No. 43 as I have mentioned no longer has access to the CSP. The owner of No. 37 Phillip Street, which also has access to the CSP, is a Mrs Azeema. Mrs Azeema was, but no longer is, a party to the present proceedings. 9. In 1987 Mr Ligdas made an application to bring his property under the Real Property Act 1900 (NSW). A qualified folio was issued on 20 July 1988. An unqualified Certificate of Title was issued in 2014. These dates have potential significance to the issues in the proceedings as I shall explain. 10. The Plaintiffs commenced proceedings in October 2014, but only after extensive correspondence between the solicitors for the Plaintiffs, initially DTA Lawyers and later Kreisson lawyers ("Kreisson"), and those for Mrs Ligdas, Mavrakis & Associates ("Mavrakis"). 11. On 17 February 2014, Kreisson wrote to Mavrakis advising that the Plaintiffs proposed to add a claim under s.88K of the Conveyancing Act 1919 (NSW). Kreissan said inter alia, that whilst the Plaintiffs' primary claim was that they have the benefit of an easement, they wished to make an alternative claim for relief under s.88K and said: "Our clients are prepared to incur all surveying and conveyancing costs associated with such an alternative claim including the costs of drafting the relevant documents. In circumstances where the Ligdas passageway is already subject to a registered easements in favour of the owners of each of 42, 40, 38, 36 and 32 Church Street Balmain, it is not apparent to this office that your client would suffer any material diminution in the value of her property, should an order be made in favour of our clients pursuant to s. 88K of the Conveyancing Act, 1919, (N.S.W.). Nevertheless, despite the parties' lack of success to date in resolving their differences, we invite you to indicate what your client contends would be the diminution in value of your client's land if the Court created an easement over the Ligdas passageway pursuant to s. 88K of the Conveyancing Act, 1919, (N.S.W.) In so doing kindly take into account the fact that the Ligdas passageway is already subject to a registered easements in favour of the owners of each of 42, 40, 38, 36 and 32 Church Street Balmain. Could you please obtain instructions in relation to the above and provide us with a response as soon as practicable and no later than Tuesday 3 March 2015." 1. Mavrakis responded saying that "in order to take our client's instructions to reply we require you to provide the following" which enumerated a number of matters including: The Plaintiffs agreement to meet the Defendant's legal costs and disbursements to date on an indemnity basis and payable forthwith as your proposed application under Section 88K is a separate cause of action not raised in any of the Plaintiffs' court documents filed to date." (emphasis added) 1. The Plaintiffs obtained an expert report from a valuer, Mr Garder, who stated that in his opinion the diminution in the value of Mrs Ligdas's property was nominal because of the existence of an easement registered in favour of the Church Street owners. Mrs Ligdas also obtained an expert report which suggested that Mrs Ligdas should receive $120,000 for the easement in favour of the Plaintiffs but at the hearing it was demonstrated, effectively I think it was agreed, that the experts' view on the relevant question was that there was little or no diminution, and that the range of compensation were an easement to be granted pursuant to s.88K was between $5000 and $15,000 in total. 2. On the third day of the hearing the Plaintiffs through Mr Moore made an open offer to Mrs Ligdas of a payment of $10,000 for an easement in favour of each of their properties (i.e. a total of $30,000). That offer was not accepted by Mrs Ligdas as such but the parties reached agreement that if any of the Plaintiffs are entitled to an easement $10,000 would be appropriate compensation for an easement in favour of each property and that the passageway should only be 1.2 metres wide rather than its original width of 1.8 metres (i.e. before Mrs Ligdas took steps to truncate its width in 2009).

A View

1. At the request of Counsel I attended a view of the LP and CSP and the interior and exterior grounds of No. 35, 39 and 41, and viewed the exterior of No. 31 and the LP from Phillip Street. I was also shown from the street another passageway from Phillip Street along the side of No. 43 but the gate was closed and it was agreed that that passageway does not now intersect with the CSP because of the appropriation, by the facing Church Street property, of the small portion of the CSP I have already described.
2. No. 39 and No. 41 are very narrow properties with a frontage of 13 feet. No. 35 is wider having a frontage of 21 feet 9 ¾ inches (see Exhibit A2 p.435) (in metric these equate to approximately 4 metres (No. 39) (No. 41) and 6.6 metres (No. 35)). The house at No. 35 as originally built would have been approximately 4 metres as well but it has expanded due to its wider frontage. Each of the houses on No. 39 to 43 were built boundary to boundary at the street.

Evidence Adduced

1. The following affidavits were read on behalf of the Plaintiffs: 1. Affidavits of Ms Clair Weaver of 30 October 2014 ("Weaver 30/10/14") and 2 November 2014 ("Weaver 02/11/14") 2. Affidavits of Ms Sinead Ann Dwyer of 30 October 2014 ("Dwyer 30/10/14") and 26 June 2015 ("Dwyer 26/06/15") 3. Affidavit of Mr Alan Dwyer of 10 November 2014 ("Dwyer 10/11/14") 4. Affidavit of Mr Ross Bilton of 26 June 2015 ("Bilton 26/06/15") 5. Affidavit of Ms Sharon Stapleton of 26 June 2015 ("Stapleton 26/06/15") 6. Affidavits of Mr Israel of 30 October 2014 ("Israel 30/10/14"), 9 November 2014 ("Israel 9/11/14"), 17 December 2014 ("Israel 17/12/14"), 6 July 2015 ("Israel 6/7/15") together with his reports, all of which are contained in the Colin Israel Bundle Exhibit B 7. Affidavits of Mr David Hudson of 26 June 2015 ("Hudson 26/06/15") and 12 December 2014 ("Hudson 12/12/14") 8. Affidavit of Mr Warren Williams of 7 November 2014 ("Williams 07/11/14") 9. Report of Mr Kirk dated 4 February 2016 ("the Kirk Report") in answer to a report of Mr Haskew for the first defendant which latter report was not read- Mr Kirk was cross-examined before the first defendant's decision not to read Mr Haskew's report: see T94.20. I should note in relation to Mr Kirk's report at tab 36 of Exhibit C that it was initially erroneously removed from the Court Book. As Mr Mavrakis pointed out in an email to my Associate following a request to both parties' solicitors for another copy of it, this may have been because of the removal of Mr Haskew's report: see T244.25, but I did not direct removal of the Kirk Report, no party asked for its removal, Mr Kirk had been cross-examined and Mr Moore made submissions in respect of it without objection. 10. Affidavit of Mr Robert Clive Pillans of 6 May 2016 ("Pillans 06/05/16") 11. Report of Mr Malcolm Garder of 9 February 2016. 12. Report of surveyor Mr Frith of Rygate Surveyors of 7 November 2014.
2. The following affidavits were read on behalf of Mrs Ligdas: 1. Affidavit of Mrs Ligdas of 18 September 2015 ("Ligdas 18/09/15") 2. Affidavit of Ms Magdalena Ligdas of 8 October 2015 ("M Ligdas 08/10/15") 3. Affidavit of Mrs Marina Sacelly 17 September 2015 ("Sacelly 17/09/15") 4. Affidavit of Mr Robert David Williamson of 3 December 2015 ("Williamson 3/12/15") 5. Affidavit of Mr Robert Staas of 11 December 2015 ("Staas 11/12/15") 6. Report of Mr Staas (annexed to the affidavit of Mr Staas of 11 December 2015) 7. Affidavit of Mr Lopco Neskovski of 23 January 2016 ("Neskovski 23/1/16").
3. The affidavits of these witnesses are contained in Exhibit C which also contains a bundle of photocopies of photographs and older documents.
4. A bundle of documents (in chronological order, Exhibits A, A1 and A2) contain the documentary evidence including the reports of the experts Mr Israel, Mr Staas, Mr Frith, Mr Neskovski and Mr Garder.
5. All of the lay witnesses whose affidavits were read were cross-examined. Each of the experts Mr Israel, Mr Staas, Mr Kirk, Mr Garder and Mr Neskovski were cross-examined except for the surveyor Mr Frith and Mr Williamson.
6. No. 39 and 41 Phillip Street, as I have noted, are very narrow houses. No. 39 is the closest to the original state of the Plaintiffs' cottages. It has a kitchen and laundry/bathroom downstairs with the living quarters upstairs (see Exhibit A2 p.878, 879). The stairs are extremely narrow (610 mm between handrail and post see Exhibit A2 p.567 and 570mm between post and facing southern wall) and with a low head height (see p.569). It is obvious that most of the items which are installed in the kitchen and laundry could only have been installed through the rear of the property and can only be removed by that means (see p.569 and p.573). The stairs in No. 41 are slightly easier to negotiate than No. 39 because they have been reconfigured but they are narrow (620 mm) and the doorway from the lower floor to the stairs is only 600 mm wide see Exhibit A2 p.571, 573, Exhibit A1 p.127, Exhibit C tab 36 p.10 of Mr Kirk's report. The stairs in No. 35 are 660 mm between the banisters, they turn 90° half way down and have a low head height: see Exhibit C p.10 of Mr Kirk's report and Exhibit A2 p.584. No. 35 is a more extensive house because it has a wider frontage than No. 39 and 41 (and 37 and 43) and the extra width has been utilised at the street level since the 1970's at least and an additional area at the lower level at least since 1995. Even so No. 35 does not have a wide frontage (6.6 metres) and see Exhibit E (a photograph taken a number of years ago).
7. Each of No. 39 and 41 Phillip Street have in their rear fence a gate.
8. No. 35 it seems likely did have a rear gate to the CSP when it was first constructed but it does not now have a rear gate. It does now have a red coloured gate to the LP about two thirds down the length of the property. It is agreed that a gate at that same location was installed in 1995. I shall refer to this gate as the "side gate." There is no agreement as to what was in place at the location of the side gate before 1995, a matter to which I shall return.
9. The LP is contained on its northern side by the side wall of No. 35 and a fence from the end of the wall to the CSP and by a fence on the No. 31 (southern) side. The LP runs into the CSP. The location of both the LP and the CSP can be seen clearly marked on the 1937 conveyance in Exhibit A. The LP is now narrower than it was in 1937 because of the actions of Mrs Ligdas in 2009.

Relevant Legislation

1. The following legislative provisions have or may have bearing on the outcome of this case: 1. Conveyancing Act 1919 NSW: 1. S.88 (1) Requirements for easements and restrictions on use of land (1) Except to the extent that this Division otherwise provides, an easement expressed to be created by an instrument coming into operation after the commencement of the Conveyancing (Amendment) Act 1930 , and a restriction arising under covenant or otherwise as to the user of any land the benefit of which is intended to be annexed to other land, contained in an instrument coming into operation after such commencement, shall not be enforceable against a person interested in the land claimed to be subject to the easement or restriction, and not being a party to its creation unless the instrument clearly indicates: (a) the land to which the benefit of the easement or restriction is appurtenant, (b) the land which is subject to the burden of the easement or restriction: Provided that it shall not be necessary to indicate the sites of easements intended to be created in respect of existing tunnels, pipes, conduits, wires, or other similar objects which are underground or which are within or beneath an existing building otherwise than by indicating on a plan of the land traversed by the easement the approximate position of such easement, (c) the persons (if any) having the right to release, vary, or modify the restriction, other than the persons having, in the absence of agreement to the contrary, the right by law to release, vary, or modify the restriction, and (d) the persons (if any) whose consent to a release, variation, or modification of the easement or restriction is stipulated for. 1. S.88K Power of Court to create easements (1) The Court may make an order imposing an easement over land if the easement is reasonably necessary for the effective use or development of other land that will have the benefit of the easement. (2) Such an order may be made only if the Court is satisfied that: (a) use of the land having the benefit of the easement will not be inconsistent with the public interest, and (b) the owner of the land to be burdened by the easement and each other person having an estate or interest in that land that is evidenced by an instrument registered in the General Register of Deeds or the Register kept under the Real Property Act 1900 can be adequately compensated for any loss or other disadvantage that will arise from imposition of the easement, and (c) all reasonable attempts have been made by the applicant for the order to obtain the easement or an easement having the same effect but have been unsuccessful. (3) The Court is to specify in the order the nature and terms of the easement and such of the particulars referred to in section 88 (1) (a)-(d) as are appropriate and is to identify its site by reference to a plan that is, or is capable of being, registered or recorded under Division 3 of Part 23. The terms may limit the times at which the easement applies. (4) The Court is to provide in the order for payment by the applicant to specified persons of such compensation as the Court considers appropriate, unless the Court determines that compensation is not payable because of the special circumstances of the case. (5) The costs of the proceedings are payable by the applicant, subject to any order of the Court to the contrary. (6) Such an easement may be: (a) released by the owner of the land having the benefit of it, or (b) modified by a deed made between the owner of the land having the benefit of it and the persons for the time being having the burden of it or (in the case of land under the provisions of the Real Property Act 1900) by a dealing in the form approved under that Act giving effect to the modification. (7) An easement imposed under this section, a release of such an easement or any modification of such an easement by a deed or dealing takes effect: (a) if the land burdened is under the Real Property Act 1900 , when the Registrar-General registers a dealing in the form approved under that Act setting out particulars of the easement, or of the release or modification, by making such recordings in the Register kept under that Act as the Registrar-General considers appropriate, or (b) in any other case, when a minute of the order imposing the easement or the deed of release or modification is registered in the General Register of Deeds. (8) An easement imposed under this section has effect (for the purposes of this Act and the Real Property Act 1900) as if it was contained in a deed. (9) Nothing in this section prevents such an easement from being extinguished or modified under section 89 by the Court. 1. Real Property Act 1900 (NSW) 1. S.41 Dealings not effectual until recorded in Register (1) No dealing, until registered in the manner provided by this Act, shall be effectual to pass any estate or interest in any land under the provisions of this Act, or to render such land liable as security for the payment of money, but upon the registration of any dealing in the manner provided by this Act, the estate or interest specified in such dealing shall pass, or as the case may be the land shall become liable as security in manner and subject to the covenants, conditions, and contingencies set forth and specified in such dealing, or by this Act declared to be implied in instruments of a like nature. 1. S.42 Estate of registered proprietor paramount (1) Notwithstanding the existence in any other person of any estate or interest which but for this Act might be held to be paramount or to have priority, the registered proprietor for the time being of any estate or interest in land recorded in a folio of the Register shall, except in case of fraud, hold the same, subject to such other estates and interests and such entries, if any, as are recorded in that folio, but absolutely free from all other estates and interests that are not so recorded except: (a1) in the case of the omission or misdescription of an easement subsisting immediately before the land was brought under the provisions of this Act or validly created at or after that time under this or any other Act or a Commonwealth Act 1. S. 28A of the RPA: Definitions In this Part and in all instruments purporting to be made or executed under this Act, unless inconsistent with the context or subject matter: "Caution" means a caution referred to in section 28J. "Land under common law title" means land alienated from the Crown in fee and not subject to the provisions of this Act and any estate or interest therein. "Registered deed" means a conveyance, mortgage or charge registered under the provisions of Division 1 of Part 23 of the Conveyancing Act 1919 . "Subsisting interest" , in relation to land for which a qualified folio of the Register has been created, means: (a) any contingent or vested estate or interest in that land that was in existence at the date on which the qualified folio of the Register was created and would have been enforceable against the person for the time being registered in that qualified folio as the proprietor had that qualified folio not been created and had any dealing registered therein been effected by a corresponding instrument duly registered under Division 1 of Part 23 of the Conveyancing Act 1919 at the same time as the dealing became registered in the Register, and (b) any estate or interest in that land, arising by prescription or under any statute of limitations, that was in existence or in the course of being acquired at the date on which the qualified folio of the Register was created. 1. S.28M of the RPA: Lapsing of caution on qualified folio created after registered deed for value (section 28J (1)): (1) This section sets out the 2 ways in which a caution recorded on a qualified folio of the Register under section 28J (1) that does not include a notation under section 28J (1A) or (1B) may lapse. (2) Firstly, if after the creation of the qualified folio, a person for valuable consideration and without fraud to which the person is a party becomes registered or, pursuant to section 36 (8), is deemed to have become registered, as proprietor of an estate or interest in the land comprised in the folio, the caution recorded on the folio lapses as regards the estate or interest: (a) on the expiration of 6 years after the creation of the folio, or (b) when the person becomes, or is deemed to have become, registered, whichever is the later. (3) Secondly, if immediately before the expiration of 12 years after the creation of the qualified folio, the caution affecting the folio has not lapsed as regards all estates and interests in the land comprised in the folio or been cancelled, the caution lapses on the expiration of that period. 1. S. 28MB of the RPA: Effect of lapsing of caution under section 28M or 28MA (1) If a caution lapses under section 28M or 28MA then, subject to subsection (2), the lapsing operates to free the land or the estate or interest in respect of which the caution lapses from any interests that affected the land at the date on which it was brought under this Act by the creation of a qualified folio of the Register. (2) However, the lapsing of a caution under section 28M or 28MA does not operate to defeat a subsisting interest that: (a) was, immediately before the lapsing: (i) recorded in the qualified folio, or (ii) the subject of a caveat affecting land comprised in the qualified folio, or (b) is preserved by section 42. (3) The provisions of this section and sections 28M (3) and 28MA (3) do not operate to defeat the estate or interest of a mortgagor in land in respect of which a Registrar-General's caveat has been recorded under section 12B (2). 1. S. 28P of the RPA: Application of provisions of this Act to qualified folio and land therein (1) Except as otherwise provided by this Act: (a) land comprised in a qualified folio of the Register is subject to the provisions of this Act, (b) the provisions of this Act relating to ordinary folios of the Register, land comprised in ordinary folios of the Register and to the registration of dealings affecting land comprised in ordinary folios of the Register shall apply to qualified folios of the Register, land comprised in qualified folios of the Register and the registration of dealings affecting land comprised in qualified folios of the Register, (c) a reference in this and in any other Act (other than the Strata Schemes (Freehold Development) Act 1973 or the Strata Schemes (Leasehold Development) Act 1986 ) to a folio of the Register includes a reference to a qualified folio of the Register, and (d) a qualified folio of the Register shall be evidence as to title in all respects as if it were an ordinary folio of the Register, except that it shall be subject to every subsisting interest in the land comprised therein, whether recorded in the Register or not.

The Construction Issue

1. The Plaintiffs submit that the 1937 conveyance should be read as creating an easement in favour of the Vendor over Lot B.
2. They lay emphasis on the words: BUT reserving unto the Vendor its successors and assigns and their respective tenants, servants, visitors, tradespeople and others authorised by it them or any of them a right of way in perpetuity over the passageway leading from Phillip Street to a passage way running at the rear of other land belonging to the Vendor and fronting Church Street as a means of access to from and between Phillip Street and the said passageway at the rear of such other land…."
3. To understand the argument I shall restate the first part of the conveyance with "CSP" for the passageway at the rear and "LP" for the passageway leading to the CSP and remove the details of the easement so it can be viewed more easily: But reserving unto the Vendor its successors and assigns a right of way in perpetuity over the LP to the CSP as a means of access to, from and between Phillip Street and the CSP. The Plaintiffs submit that the words "other land belonging to the Vendor and fronting Church Street" are surplusage and should not be used to read down the width of the opening words.
4. There are two reasons why I am unable to accept that construction. The first is that I regard the portion of the grant "AND IT IS HEREBY AGREED AND DECLARED" to the end as a very deliberate attempt to meet the requirements of s.88(1) of the Conveyancing Act 1919 (NSW) which I have earlier set out.
5. Secondly I do not think that the words "the other land belonging to the Vendor and fronting Church Street" are surplusage. I think the draftsman was creating a limitation of the land which was to be benefitted i.e. the land (a) owned by the Vendor (b) meeting the description of land of the Vendor fronting Church Street. The Vendor had created three lots, one of which fronted Church Street (Lot C) and two which fronted Phillip Street (Lots A and B). Lot A was not land which fronted Church Street. The subdivision had been registered a month before the conveyance.
6. A further answer to the Plaintiffs' claim is that to be effective the easement had to meet the requirement of s.88(1), that is, it has to be clearly indicated which land has the benefit of the easement and which land has the burden of the easement. If the construction which the Plaintiffs advance is open (contrary to my view), the easement does not meet the requirements of s.88(1): see Goodwin v Papadopoulous (1985) NSW Conv R 55-256 per Mahoney JA.

Easement by Prescription

1. There was no dispute between the parties as to what is required to establish an easement by prescription namely that the servient land has been burdened by the easement (in this case a right of way) for not less than twenty years: Delohery v Permanent Trustee Co of NSW [1904] HCA 10; (1904) 1 CLR 283. Use that is obtained by force, secretly, surreptitiously or with permission of the owner of the servient land does not establish the right: see P. Butt Land Law (6th ed, 2010, Thomson Reuters) at [16.72]-[16.76]; Williams v State Transit Authority of NSW [2004] NSWCA 179 at [80]; Gardner v Hodgson's Kingston Brewery Co Ltd [1903] AC 229 at 238 (Lord Davey).
2. While the use must not be secret or surreptitious because there must be acquiescence on the part of the servient owner, there is authority that actual knowledge is not required where an ordinary owner, diligent in the protection of his interests, ought to have known of the use: Fernance v Simpson [2003] NSWSC 121 at [28] and [31]. The requirement of acquiescence may be satisfied by toleration of use as a matter of "neighbourly indulgence"- but the line between conduct "by permission" and conduct "as of right" will sometimes be difficult to draw: Dobbie v Davidson (1991) 23 NSWLR 625 at 627G- 629A. However, if permission is given at any point in the twenty year period, that permission "cancels out the benefit of all use to date:" see P. Butt at [16-75]; Austin v Wright (1926) 29 WALR 55; and Earl de la Warr v Miles (1881) 17 Ch D 535 at 596.
3. In determining whether a particular use is "continuous," it is necessary to demonstrate use "of such a nature as to indicate to the mind of a reasonable person in possession of the servient tenement the fact that a continuous right to enjoyment is being asserted, and ought to be resisted if such right is not recognised, and if resistance to it is intended:" Williams at [80]; Hollins v Verney (1884) 13 QBD 304 at 315; Hamilton v Joyce [1984] 3 NSWLR 279 at 289-90. However, as noted by Professor Butt at [16-79], the use of a right of way is "generally discontinuous, and so all that need to be shown is use whenever circumstances require provided the intervals are not excessive": see e.g. Hamilton at 289. Where evidence is lacking as to use for "relatively short periods" of time during the alleged twenty year period, depending on the circumstances, it may be possible to draw an inference of continuity of use: P. Butt at [16-79]; Gangemi v Watson (1994) 11 WAR 505.
4. Mr Moore in his written submissions directed my attention to the remarks of Campbell J in Maher v Bayview Golf Club [2004] NSWSC 275; (2004) 12 BPR 22, 457 at [79]-[83]. There his Honour cites a number of cases including Hamilton and Gangemi as authority for the above mentioned principles. Mr Ireland similarly cites Gangemi and asserts that "a long intermission may be a strong piece of evidence against the existence of a continuous right."
5. There is a live factual contest about the use made by the Plaintiffs and their predecessors in title to which I shall return but there is a preliminary question as to the cut-off date for consideration of the twenty year period. Mr Moore contended that the end date for the twenty year period was 19 July 2008. Mr Ireland contended that it was 19 July 2000.
6. To determine which of those two dates is the end date I need to explain how each side has arrived at those dates.
7. Mr Moore's process of reasoning is as follows: 1. Mr Ligdas obtained a qualified Torrens title on 20 July 1988 following an application made the previous year to bring No. 31 under the Real Property Act 1990 (NSW). 2. As at 20 July 1988 the LP was in use by the predecessors in title of the Plaintiffs' properties. 3. By virtue of s.41(a1) of the Act, any easement which existed would be treated as an easement which was omitted from the Register and which could be added after an unqualified Certificate of Title was issued in 2014. 4. By virtue of s.28P and the s.28A definition of "subsisting interest," the easement need not to have been fully choate by July 1988 because s.28A speaks of rights which were "in existence or in the course of being acquired at the date on which the qualified folio of the Register was created." 5. If the right of way was being exercised even for a short time before July 1988 then the right of way was in the process of being acquired and the time was extended. 6. The Plaintiffs accept that the time could not be expanded beyond 20 July 2008 because the last start date for the twenty year period had to be 20 July 1988.
8. Mr Ireland did not cavil with any of (1)-(5) but disputes the conclusion in (6) by virtue of s.28M and s.28MB. S.28M provides that the caution placed on title when land is brought under the Act lapses at the expiry of 12 years after the creation of qualified folio, and the effect is that (save for exceptions not presently relevant) the land becomes free from any interests which affected the land at the date on which the land was brought under the Act by the creation of qualified folio. Mr Ireland accepts that if a right was created by prescription because of a use in excess of twenty years as at 19 July 2000 it would be a right that had been omitted from the Register and can be later added even without the landowner's consent but submits that if the process of acquiring an easement was not completed as at the date of lapsing of the caution then what occurred after that date is irrelevant.
9. Mr Moore drew attention to the fact that no new Certificate of Title was issued until 2014. However, the Act does not make that administrative act the trigger for termination of interests - it is s.28M with s.28MB which achieves that. The remarks of Tamberlin AJ in South Maitland Railways Pty Ltd v Satellite Centres Australia Pty Ltd [2009] NSWSC 716; (2009) 14 BPR 26,823 at [33]-[35] supports this approach to s.28M and s.28MB. I therefore accept Mr Ireland's contention that the right of way would have to have been created by July 2000, and that in the circumstances of this case no use by the owners after July 2000 is relevant to the claimed easement by prescription subject to one matter to which I shall return.
10. Mr Moore relied on Delohery and Maher. Maher particularly at [38] supports the proposition that an easement which is not fully choate may become choate after a qualified title is issued. That is not now disputed by Mr Ireland. However, Maher is not authority for the proposition that an easement can become choate after the caution has lapsed. Once the caution has lapsed, it would appear on the authority of Williams that a prescriptive easement cannot arise.
11. Another issue as to timing arose. The Plaintiffs contend that if there was use of the right of way by any predecessor in title of a particular lot for a period of twenty years, that is sufficient to create an easement over servient land - i.e. it is not necessary for each plaintiff to prove that they or a predecessor in title exercised that right of way for the period of 20 July 1980 to 20 July 2000. Mr Moore accepts that the dominant tenement can lose a right of way by abandonment but he submits that there is no evidence of abandonment and indeed Mr Ireland does not assert abandonment.
12. The point is an interesting one and appears to have been answered. In Professor Butt's book at [16.101], Professor Butt states: "At the end of 20 years, a right arises to continue use of that same nature." At [16.117]-[16.118], Professor Butt describes the principles relating to abandonment stating at [16.118]: "In the authorities on abandonment, one principle stands out above all others: an easement is not abandoned by mere non-use," and citing numerous cases including Treweeke v 36 Wolseley Road Pty Ltd [1973] HCA 27; (1973) 128 CLR 274 at 288, 302, Long v Michie [2003] NSWSC 233 (at least sixty years of non-use). See also the comment in Gaunt and Morgan J's Gale on Easements at (18th ed, 2008, Sweet & Maxwell) [12.66] that the true rule is that: "mere non-use without more, however long, cannot amount to abandonment" citing Treweeke and also Benn v Hardinge (1992) 66 P & CR 246 in which the English Court of Appeal held that non-use for 175 years did not support an implication of abandonment. See also Mills v Silver [1991] Ch 271 in which it was held that use up to 1981 would support a claim to a prescriptive easement despite non-use between that time and 1986 on the basis that, unlike a claim under the Prescriptive Act 1832 (UK), the twenty year period need not be the immediate period before the action is brought.
13. It follows in my view that if the Plaintiffs can establish use of the right of way for more than twenty years at any time within the period 1951 to 2000 that is sufficient. The start date of 1951 was identified by Mr Moore and there was no disagreement by Mr Ireland with that. It was in 1951 that the individual lots for No's 35-43 Phillip Street were created. Mr Moore did not contend that use of the LP prior to 1951, when all of the lots in Lot A were owned by one person, was relevant.
14. Mr Ireland made the point, which I accept, that the owner of one property A cannot establish an easement by proving that B and C used the right of way. However there are several respects in which B's use of the right of way over X's land can be relevant to A's claim that his predecessors did exercise the right of way: 1. Evidence of use by B and C might assist the Court in inferring that A's predecessors in title did also use the right of way. 2. Secondly the failure of X to object to the use by B and C may support the conclusion that it is unlikely that X had any objection to A's predecessors using the right of way if it is held that A's predecessors were, on the balance of probabilities, using the right of way.

Ms Stapleton, Mr Williams and Mr Pillans

1. These three witnesses lived at or owned properties in Phillip Street (No. 39, No. 43 and No. 35 respectively). They were entirely credible and there was no suggestion that I should not accept their evidence. They have no interest in the outcome of the proceedings.

Mr Hudson and Mr and Mrs Dwyer

1. These witnesses do have an interest in the outcome of this case but there was nothing in their demeanour or nature of their evidence which leads me to have doubts as to their honestly and reliability, nor was any submission made by Mr Ireland concerning their credit.

Mr Bilton and Ms Weaver

1. There was in cross-examination some suggestion that they exaggerated their evidence but this was related to the escalating conflict between themselves and Mrs Ligdas and her daughter Magdalena ("Magdalena"). I found them both to be essentially honest witnesses doing their best to recall rather unpleasant confrontations with Mrs Ligdas and Magdalena fairly soon after their arrival in Phillip Street. Mr Bilton did agree in cross-examination that it was Magdalena that swore at him and not Mrs Ligdas. Magdalena did not dispute that she had sworn at Mr Bilton or that she had thrown stones at his property. No submissions were made by Mr Ireland concerning their credit.

Mrs Ligdas

1. Mrs Ligdas's evidence deals with the following matters: 1. The history of the CSP/LP use from 1959 to 2012. 2. The history of No. 35. 3. The events of 2012, particularly August 2012 when she locked the Plaintiffs out of the LP. 4. The period after the lock out in August 2012.
2. Mrs Ligdas denied some of the usage of the CSP/LP alleged by the Plaintiffs, she says of some of the usage that she did not observe it, asserts that permission was sought from her or her husband in respect of some of the usage and denies a number of the conversations which are asserted by the Plaintiffs.
3. Mrs Ligdas was born in Greece and emigrated to Australia in 1959 at the age of 23. She says that she does not read English. She worked as a machinist for a number of years when she first lived in Balmain (she married Mr Ligdas and moved into No. 31 in 1959) but later became an assistant in a large department store. Mr Ireland explained that in his assessment she could cope with the cross-examination without an interpreter (T254).
4. There was much confusion in the cross-examination caused perhaps by language difficulties but also because Mrs Ligdas seemed to have no memory of matters, e.g T261.26-12, T262.35-42, T263.16-21, T265.17-45, T272.10-11, even of events that were more recent. She was cross-examined about where Mr Latta kept his motor bike and said she did not remember: T256.49 -T257.4 but at T257.27-31 she said she did remember and it was a topic she had dealt with in her affidavit: para 31- in which she said that Larry and Jeff, two American travellers living at No. 35 in the 70's, had walked their bikes to the rear of No. 35 using the 'Reece Passageway.'
5. There was extensive cross-examination of Mrs Ligdas concerning the gate which she had described as "temporary." Her evidence was highly confusing: see T276-280. Matters were not improved in re-examination: see T289-290. Not only that but when Mrs Ligdas was shown a photograph of the side gate from No. 35 she said it was not there today: T279 -T280 although at T285 she did recognise it. Mrs Ligdas gave evidence in her affidavit about her extensive hours of work which assisted her case that she had not observed use of the laneway: see also at T286.13-16 and that is in the context of questions about a gate which she said she could see from her house before she raised the height of the fence. She retired from work in 1995 and yet she initially said she had not been home much even then (see T288-T289). Mrs Ligdas had to concede that she was home looking after her husband and I was left with the impression she had been untruthful when she said she had not been home "much" after her retirement, and was exaggerating the extent to which her work previously had prevented her from observing or being aware of the use of the LP.
6. It is also relevant in this connection that she was able, on her evidence, to observe things occurring when the neighbours did not use the LP but not to observe when they were using the LP.
7. Mrs Ligdas was emphatic that there were no trees or bushes on No. 35 from 1959 until Mr Latta planted pine trees in 1976. There is undisputed evidence however that there were trees on the property as at 1968: see T69.
8. In paras 30- 33 of her affidavit Mrs Ligdas spoke of "the Reece Passageway" but at T262-263 she thought that was a garden at the back of No. 35.
9. Mrs Ligdas said she immediately gave permission to remove the tree that had fallen at No. 37 straightaway (T265) but agreed later that she did not give permission until January 2015 the request having been in October 2014.
10. Mrs Ligdas said that the decision to move the fence in 2009 was not something she spoke to anyone else about which given her age and the fact that she had a daughter very involved in her welfare and the LP seemed quite unlikely, and Magdalena's evidence was that she and her mother had spoken in 2012 about the locking of the gate: T299, and see Mr Hudson's evidence (para 17 of his affidavit) re Magdalena's involvement in the decision making process.
11. Mrs Ligdas said that Mr Reece had asked Mr Ligdas permission to install a gate at the end of the LP, and that Mr Ligdas told her that he had agreed "only on a temporary basis" (para 81). The 'temporary gate' assertion was the subject of much confusion in the cross-examination: see T276-280 and the following was the re-examination on the topic (T289.41-T290.6): Mr Ireland: In several answers to Mr Moore's questions, you used the word "temporary", about a gate? Mrs Ligdas: Yeah. Mr Ireland: Where was that gate? Where? Mrs Ligdas: Sorry, John, I'm not remember. Mr Ireland: When you answered the questions, you spoke of a "temporary gate"? Mrs Ligdas: Yeah. Mr Ireland: What sort of gate was it, what was it made of? Mrs Ligdas: I don't know, you mean that one, sorry? Mr Ireland: You don't remember anything about the location of the gate you referred to as the temporary gate, is that right? Mrs Ligdas: Yes
12. I think that the gate to which Mrs Ligdas was referring in her affidavit was the gate installed at the beginning of the LP (from Phillip Street). It was not a temporary gate at all- it was in place from 1996 till 2012 when Mrs Ligdas had it removed without any discussion with Mr Bilton or Ms Weaver. The explanation given by Mrs Ligdas in her affidavit does not make sense and the 'temporary' label as I say does not fit with what occurred. There is no suggestion that Mr and Mrs Ligdas at any time prior to August 2012 sought the removal of this gate. The fact that Mr Reece was permitted to put in a gate and to place pavers on the LP (which were also removed in or after August 2012) is consistent with Mr and Mrs Ligdas accepting that the owners of No. 35 had an interest in and a right to use the LP, and their failure to do anything about these 'intrusions' is inconsistent with Mrs Ligdas's case that she has never consented to their use of the LP.
13. On the question of Mr Reece's use of the LP Mrs Ligdas said: " Mr Reece never asked permission to use the LP. He never said to me "may I use the passageway" (or words to that effect), and my husband never said to me "Mr Reece has asked for permission to use the passageway" (or words to that effect). During the renovation, his builder tried to take half the LP and poured concrete over the LP before Con and I stopped him. Shortly after we stopped him, he had the concrete broken up and removed. Mr. Reece used his garage to store his garbage bins and had no need to use the LP. Shortly after the works were completed, Mr Reece also laid some pavers in the LP without asking permission. By that stage, however, my late husband was unwell and I didn't ask him to remove them. In 2012, I had the pavers removed at my cost." Which makes it less likely that he asked permission to put in a gate at the end of the LP. Exhibit E also shows that he used the LP for his building work.
14. These doubts about Mrs Ligdas's reliability lead me to approach her evidence with considerable caution. Where her evidence conflicts with the Plaintiffs' witnesses I prefer the evidence of those other witnesses. I accept, for example, Mr Hudson's evidence: 1. That when he spoke to Mrs Ligdas about rubbish removal he was in the LP. 2. That Mrs Ligdas told him to ensure that he did not put his rubbish bins in front of her house and not to leave the bins in front of her house at times when she saw him wheeling the bins along and out of the LP. 3. That Mrs Ligdas warned him to be careful of the brick paving when using the LP, and although Mrs Ligdas positively denies that any neighbour rode his motorbike down the LP and says that she never saw anyone walking a motorbike down the LP Mr Warren Williams said his father used the CSP/ LP for his motorbike for many years, which evidence I accept.

Magdalena Ligdas

1. Magdalena in her affidavit of 8 October 2015 deposes to a number of matters relevant to her mother's case, as follows: 1. That she has lived at No. 31 since 1962 although for extensive periods she was travelling for work and away from home from 1995 till 2008. 2. That her bedroom (which she shared with her sister Marina) overlooked the LP, and she could see the heads of people using the LP until the fence height was raised in 2009. She says she can hear the LP being used. 3. She has never observed anyone making frequent or regular use of the LP. 4. She has seen it used occasionally but never repeatedly by the same person or group of persons and has never seen it used continuously or frequently by anyone for moving furniture, moving garden waste, moving bins in and out, arranging access for tradesman, permitting access on foot to the rear of properties on either Church Street or Phillip Street. 5. That from the late 1960's or early 1970's onwards the LP was "overgrown and unkempt" and generally covered in long grass of about 2 feet in height. 6. She did not play in the LP (but her brother Con did do so) but otherwise does not recall children using the CSP or the LP. 7. There was no gate in the fence dividing No. 35 from the LP until 1996/97 and none at the rear of No. 35 to the CSP. 8. She observed tradesman working on properties in Church Street and using the LP on several occasions since 1980- on each occasion she would raise this with her mother who would tell her that she had had a call from the Church Street neighbour who said they were going to use the passageway to do some work on their house and that her mother told her that she had told the Church Street neighbour that that was "fine." 9. Mrs Arnold always kept her bins on the front verandah (para 25). 10. Prior to the introduction of wheelie bins she did not observe anyone carry the bins out to Phillip Street via the LP. 11. Mr Reece installed an iron gate at the Phillip Street end of the LP in the mid 1990's and her mother told her that Mr Reece had asked if he could install the gate and then she had said he could but only temporarily (para 28). 12. Mr Reece deposited a large quantity of debris in the LP and after the building work at his house he laid bricks over the debris in the LP. 13. She never observed use by the neighbours of the LP for the purpose of moving wheelie bins. 14. In the 2000's Mr Pillans used the LP to access the rear of his property for some remedial work on the first floor of his home and she drew to her mother's attention the fact that the tradesman were using the passageway to work on the rear of No. 35 and that her mother said Mr Pillans had asked for permission (para 31). 15. In early 2012 she noticed bins for No.37, 39, 41 and 43 in the LP but she did not see anyone moving those bins (para 33). 16. In early 2012 she had a conversation with Mr Dwyer at 11pm at night after the bin was "making a lot of noise" and said: "do you know what time it is? You're disturbing our sleep and you're trespassing." She says Mr Dwyer looked up at her but did not respond (para 34 and 88). 1. In 2012 she heard a loud noise in the LP at about 11pm and went to see the cause of the commotion. She says she said to Mr Bilton: "You are trespassing on our property and do you know what time it is?" And that Mr Bilton, "lowered his head ignored me and did not respond" (para 35). 1. On 25 March 2012 she says that she heard loud noises coming from the LP where she found Mr Bilton using a high pressure hose in the LP to clear bricks and she told him to stop as he was trespassing- that he did not respond and that she called the police who came at 11:30pm. 2. She says the side gate was installed in about 1997. 3. She says she heard Mr Pillans ask her mother in 2010 if he could use the LP (see para 67 of her affidavit). 4. She says the Dwyers moved in using the front door of their property (see para 85 of her affidavit). 5. She says Mr Dwyer has stored his ladders in a truck since February 2015. 6. She agrees she had a conversation with Mr Hudson (see paragraph 17-22 of Mr Hudson's affidavit) but says it was not in the terms of the conversation deposed to by Mr Hudson: see para 96 of her affidavit. 7. She denies that she ever had a conversation with Mr Hudson whilst he was in the LP or in the course of making use of the LP (para 101 of her affidavit). 8. She says she never saw or heard Mr Williams using a motor bike.
2. There are several matters which lead me to have serious doubts as to the reliability of Magdalena quite apart from her obviously strong connection with the interests of her mother. I will deal with the detail of her evidence below but I summarise the points relevant to her credit as follows: 1. Magdalena corroborates her mother's evidence about Mr Reece asking in the mid 90's if he could install a gate at the end of the LP and that her mother had told her that she said he could "but only temporarily." I have dealt with that evidence in relation to Mrs Ligdas and the unlikelihood of the description 'temporarily' having been used or permission being sought. 2. She like Mrs Ligdas said she recalled (para 24 of her affidavit) the Church Street owners asking for permission yet those owners did not need permission. 3. Magdalena gives evidence (para 67) of a conversation with her mother about Mr Pillans but neither her mother nor Mr Pillans (see para 40 of his affidavit) recalled such a conversation. 4. I observe that notwithstanding the convincing evidence of Mr Hudson, Mr Pillans and Mr Dwyer that they were using the LP to move their wheelie bins on a most regular basis, (see also Mr Pillans' affidavit at para 20 where he states that he saw Mr Hudson, Mrs Arnold and the Dwyers occasionally carrying things from the rear of their properties to Phillip Street), Magdalena, whose window overlooked the LP (she says) until her view was obscured in 2009 and whose ability to hear bins moving was never impeded, says she never heard or saw them doing so. I find that to be highly unlikely and implausible. 5. Magdalena seems to have had a prescient interest in the LP that on the objective evidence her father and mother did not have: see paras 24, 28, 30, 31 of her affidavit.
3. My impression from the evidence is that Magdalena is an important actor in the attempt to deny the Plaintiffs' rights over the LP (see for example paras 33, 34, 35, 36, 41 and 52 and see Mr Hudson's evidence paragraph 17-21 of his first affidavit), and that she is very keen to assist her mother's case. It appears likely from Mr Bilton's evidence that she harbours some animus against Mr Bilton of a personal nature: see T222.48- T224.31, T225.25 - T226.5, T292.21-36. Like her mother she asserts a lack of observation of people using the LP and an observation of the Plaintiffs' or their predecessors in title not using the LP.
4. There are several further points to be made about some of the details: 1. The evidence that she did not observe anyone moving waste along the LP is inconsistent with Ms Stapleton's evidence: see paras 9 and 10 of her affidavit. 2. In relation to her conversation with Mr Dwyer in early 2012 in which she told him that he was making a lot of noise and that he was trespassing, Mr Dwyer did not respond in his evidence directly to those assertions but he did say in his affidavit that at no time between 28 August 2009 and 6 August 2012 had Mrs Ligdas or anyone on her behalf objected to use of the LP. He also said in his affidavit that he and his wife spent five weeks renovating the property after settlement and had tradesman using the CSP/ LP for that purpose without any objection from Mrs Ligdas or anyone on her behalf (see paras 8-10 of his affidavit at p.58 Exhibit C). 3. She says that Mrs Arnold always kept her bins on the front verandah- that was corroborated by Ms Stapleton but only since 1982: T104.34-40, and see para 7 of Ms Stapleton's affidavit. 4. Her evidence that she never observed use of the LP by neighbours for their wheelie bins may be true but as I have said it is unlikely given the evidence of Mr Hudson, Mr Pillans and Mr Dwyer. She did say that she observed bins in the LP (see para 33 of her affidavit). 5. Her evidence that her mother told her that Mr Pillans had asked for permission in 2005 to use the LP for tradesman is supported by Mr Pillans' evidence at paragraph 9 (see p.225 Exhibit C). 6. In relation to her alleged conversation with Mr Bilton he denies this whole incident: see para 7 of his second affidavit. 7. In relation to the high pressure hose incident Mr Bilton says that Magdalena was not present when he was using the hose and it was Mrs Ligdas who confronted him. He says that Magdalena arrived later and swore at him and that he then said: "I am going to finish the job of cleaning the bricks in the passageway, because they are slippery with algae and quite dangerous, and in the coming days I will address the concerns you have raised." which is contrary to Magdalena's evidence that he did not respond. 1. In relation to the birthday party Mr Pillans says that he does not recall the conversation which Magdalena asserts implicitly he had with her mother. Mrs Ligdas does not give evidence of such a conversation so it is not surprising that Mr Pillans does not remember it. 2. In relation to the state of the LP it should be noted that from 1995 there were pavers in place (and see Exhibit E which shows no sign of grass at that point of time). There is one photograph showing some vegetation (see Exhibit A3 p.1130) which was at the time of the carport, so taken before 1995. Mr Williams said he used the LP for athletics practice and cleared it of stones and made the surface smoother: see para 69 of his affidavit. He also said that his father always kept the lane pretty tidy (T126.24).

Mrs Marina Sacelly

1. Mrs Marina Sacelly was born in 1963 and lived at No. 31 until she was thirty years of age in 1993. She was overseas from 2000 to 2004 and 2008 to 2013 (T326). She gave the following evidence: 1. That the LP was overgrown with weeds and filled with rubble and uneven ground. 2. That there was a passageway/driveway next to the LP inside the property at No. 35- it was open and connected to the rear backyard of No. 35. Later a carport was built over the passageway and there was always a motor vehicle parked at the front of and within the property. 3. Mr Latta used the passageway within No. 35 involving a few steps and pavers leading to the backyard and kitchen. 4. In the 1960's and 1970 she and her sister with other kids played in the LP and the CSP (para 8). 5. There was a passageway that went from Curtis Road to Phillip Street- it had gates even in her youth and is now locked. 6. When Mr Latta and Mr Reece owned No. 35 there was no rear or side access to either the CSP or the LP but a gate was eventually installed in the side. 7. She saw people occasionally walking along the LP but not regularly. 8. She says she recalls her parents allowing neighbours to use the LP on occasions. 9. She says on the occasions when she frequently visited her mother she did not see the Plaintiffs "or any of the other people mentioned use the LP at anytime." 10. She said she did not observe Mr Williams or his family use the LP on a daily basis, and did not recall any tradesman using the LP in 1975 or 1976. She has never observed the LP be used for access or exit in emergency circumstances nor does she recall any furniture being moved along the LP to No. 43. 11. She thinks small appliances some of which she has identified could fit within a 66cm staircase.
2. Mrs Sacelly who is Mrs Ligdas's younger daughter also had a real interest in supporting her mother but I do not think it was demonstrated that she was obviously untruthful. Mr Moore did in his written closing submissions (paras 84-86, 94 and 104) contend that her evidence and that of Magdalena was implausible because she deposed to meetings alone with Mr Latta in his house yet said she and Magdalena modestly kept the blinds down of their bedroom. I think that was a matter which should have been put to Mrs Sacelly if a submission of that kind is to be made.
3. There were a number of other challenges to their reliability demonstrating the haziness of their recollection of what occurred up to forty years ago. Mr Moore submitted that Mrs Sacelly was deliberately minimising the drop down from the carport to the rear of No. 35 with a view (implicitly) to removing the likelihood of use by the owners of No. 35 of the LP. I think there was an element of this, and the evidence did suggest the drop down from the hard stand/carport was more significant than Mrs Sacelly was prepared to admit but precise recollection of heights and distances are often difficult.
4. Again, bearing in mind her long absence from the property which may explain this, Mrs Sacelly says she has observed little use of the LP, even when it is clear that Mr Hudson, Mr Pillans, the Dwyers and Mr Bilton have been using the LP quite regularly in more recent times and the evidence of Ms Stapleton and Mr Williams makes it unlikely.
5. Dealing with the points in [60]: 1. In relation to the state of the LP. I have dealt with that at [59(9)] 2. I will deal with the items in (2), (3) and (6) later. 3. Mrs Sacelly is not an expert in appliances and what can be taken up a narrow stairway with a low head height. 4. So far as (7), (9) and (10) are concerned these observations are not destructive of the Plaintiffs' case. That she recalls her parents allowing neighbours to use the LP is actually helpful to the Plaintiffs' case unless permission is established.
6. Most of the factual dispute concerning the use of the LP (and CSP) can be characterised as evidence from the Plaintiffs' witnesses of the use they or others made and Mrs Ligdas and her daughters saying they did not observe the use which the Plaintiffs' witnesses say they made or observed. Because I found the Plaintiffs' witnesses all to be credible and noting that three of them (Mr Pillans, Mr Williams and Ms Stapleton) no longer have any connection with the property and because "non observance" by Magdalena and Mrs Sacelly does not disprove the use asserted and is only marginally relevant to Mrs Ligdas's knowledge and because of my concerns about Mrs Ligdas's reliability, I accept all of the evidence of the Plaintiffs' witnesses on this topic.
7. There are a number of matters of importance which apply to all three of the Plaintiffs' properties: 1. The LP and the CSP were each recorded on documents lodged in 1937 as a "passage" and on 22 April 1952 a plan of subdivision was lodged for the block (see p.252 Exhibit A1) which showed each of the LP and the CSP as "passage." The Cadastral Records Viewer Print (Exhibit A1 p.277) shows the passageways too but without the word "passage." 2. This is not a case where the Plaintiffs seek to establish that a right of way has somehow developed out of a path through bushland or farmland unmarked and unclear. The LP has since 1937, or at the latest by 1943, been clearly demarcated by a fence and a wall as a passageway. It is hardly surprising that Mrs Dwyer thought it was public land: see T185. I think it is easy to infer that a passageway which by 1937 or at the latest 1943 was clearly identified by its physical setup as such would be used as a passageway. 3. The evidence is that wheelie bins were introduced into Balmain in 1999. Mr Hudson gives evidence of his use of the CSP and LP for the purpose of wheeling his bins up the CSP and LP to Phillip Street from 1999 up until August 2012 when Mrs Ligdas locked the gate to the LP. Mr Bilton utilised the LP for the same purpose from January or February 2012 until August 2012. The Dwyers did as well from 2009 till 2012. Mr Ireland relies on the fact that as the cut-off date for the creation of the easement is 2000 the use after 2000 is irrelevant. This approach seems to treat the use of the CSP/LP for rubbish and garden waste removal as commencing with the introduction of wheelie bins. Not only is that contention inconsistent with Ms Stapleton's evidence it is unlikely that rubbish was only being removed in that fashion on and from after the introduction of wheelie bins. There were bins prior to that (metal I think it is agreed) and the strong likelihood is that Mr Hudson, the Dwyers, and Mr Bilton were just continuing the use of the CSP/LP that had been previously made by owners of the three properties from 1937 onwards, except that Mrs Arnold in her later years did, it is established, keep her bins on her front verandah. The use for removal of kitchen and household waste is one posited by Mr Israel: see Exhibit B p.328. 4. There is evidence from Mr Williams that establishes that ice was delivered to the properties via the CSP and the LP. At T124.11 it was put to him that by the end of the 1950's when he was 16 or 17 there was no longer ice being delivered to his parent's property- he said that the ice deliveries stopped when the fridge was installed upstairs but he thought that even at 17 that had not occurred. I think it is more probable than not that ice was delivered to the Williams property up until 1960 and I infer that ice was being delivered to the other properties till 1960 since they, like the Williams, did not have fridges when he was young: see para 4 of his affidavit. 5. There is evidence that the children of the area in the 60's used to run around the LP and the CSP and the passageway beside No. 45, and it can be readily inferred that this was a use continued from the late 30's. Mrs Sacelly confirms that, although Magdalena recalls playing there with children only on a few occasions. 6. The gap in the fence from No. 35 to the LP is some evidence of likely use of the LP (although I deal later with the question of the length of time that there was access via the gap). 7. Mr Williams says he also used the passageway for athletics training until about 1960 (T125-6), and recalls that all the children of the neighbourhood used to ride bikes up and down the passageway to make their way to Phillip Street. 8. Mr Williams observed the use of the CSP/LP by not only his family but all the neighbours generally and for the moving in and out of furniture and appliances, and he said that the LP was used "daily by us and all the neighbours" (para 37). 9. From about 1951 to 1979, Mr Williams' father, Mr George Williams, constantly used the passageway to take his motorcycle from the rear of the property to Phillip Street (T125). That is supported by the evidence of Ms Stapleton, although she can only remember having heard the motorcycle being taken along the passageway once or twice (T105). 10. Mr Williams' evidence is that in 1975 or 1976, tradespeople carrying out renovations to the back of No. 43 used the passageway to bring in materials. 11. The evidence supports the continued presence of gates to the CSP for No. 39 and No. 41 (I shall deal separately below with No. 35) from the time of construction of their houses in the 1890's until the present day.
8. In relation to [66(11)], the importance of the presence of gates is a matter addressed by Mr Israel (at p.341 Exhibit B) where he said, "the continued use for access to the rear yards of No's 35 to 41 Phillip Street is supported by the presence of the connecting gates from the rear of the properties to the "Passage." The fences have been replaced a number of times since original construction and the gates have been retained or reinstated throughout. Had the gates not been required they would have been omitted in the periodic replacement of rear fences." Mr Staas did not agree saying that: "the fact of preservation of a gate provides no reasonable foundation- for a conclusion of the breadth and strength of the kind reached by Mr Israel."
9. There is no dispute between the experts that the original purpose of the CSP was as a "dunny lane" to enable the cartage of night soil from the outhouses at the rear of the Phillip Street and Church Street properties. There is no dispute that by 1899 (or 1912 at the latest: Mr Israel) all of the houses in these streets had had sewerage connected. Where the experts diverge is that Mr Israel is of the view that the CSP and the LP were in continued use for access to the rear yards of No's 35 to 41 Phillip Street after the sewerage was connected for "removal of refuse and for deliveries to service the rear yards and ground floor kitchen laundry areas."
10. Mr Staas's evidence was as follows: 1. He did not think there was as at 1937 a clearly delineated passageway in fact as opposed to on the plan of the subdivision (see para 40(b)). 2. He seemed to think there may have been an available route for residents through what became No. 35 (para 40(d)). 3. He says dunny lanes were not characteristically used for the delivery of consumables such as coal or ice because it would have been more time consuming (para 442 Exhibit A3 p.986). 4. There are numerous locations in Balmain where terrace houses similar to the Church Street and Phillip Street houses have been without rear access (para 45). 5. No. 35 and No. 41 have been renovated extensively "and either or both internally reconfigured or substantially extended" so this has "removed any reasonable basis to assert that a right of access via the CSP and LP is to any degree necessary for their use or development" (para 48 (c)). 6. No. 39 could be used and developed in the same way that similar properties are used without rear access. 7. Mr Staas accepts that the particular white goods presently in the lower level of No. 39 Phillip Street could not have been moved to their current position if brought into the property on the ground floor of the property from Phillip Street but says he has seen no evidence as to how they were delivered. 8. In relation to No. 35 and No. 41 he says their internal plans allow for "relatively simple delivery to each part of the site without recourse to the use of [ the LP or CSP]" (para 71 Exhibit A3 p.991). 9. He expresses the view that bulky goods can be delivered by the temporary removal of windows or access through an adjoining neighbour's property with permission.
11. A number of these points are relevant to the s.88K claim but I shall deal with them here. Mr Staas had not seen, when he prepared his report, the marginally clearer images from 1943 and 1968 that Mr Israel had found and which were best viewed on a screen. The 1943 photograph shows the LP as a physical laneway by that date. Mr Staas had not been provided with the Plaintiffs' affidavits (see T116). He therefore was not aware for example that in fact ice was delivered using the CSP/LP, and that means also that his view about the general use of dunny lanes for example for delivery of ice and coke is unreliable for these properties. Secondly it is an important feature of these properties that all three properties at least until 2000 for No. 41 and still today for No. 35 and No. 39 have their kitchens downstairs. That makes the delivery of ice via the LP/ CSP in the first half of the 20th century, for example, entirely sensible. Mr Staas did not say whether the properties which do have rear access lanes use those rear lanes nor did he say whether the Church Street houses have their kitchens on the lower level.
12. There is no evidence that any neighbour of No. 35 Phillip Street or Church Street used No. 35 for access to the CSP and Ms Stapleton's evidence was that she had never observed such a use.
13. Reference should also be had to Mr Kirk's report where he describes the conditions in No. 35, 39 and 41 and says: "33. The lower ground floor level of each of these 3 dwelling houses contains rooms and areas essential in any ordinary dwelling. If access to each of these lower ground floor levels was restricted to only the internal stairway of each of the dwelling houses, then it will be impossible to transport to or from that level, any bulky item of furniture or whitegoods that cannot be disassembled. This will include refrigerators, washing machines, clothes dryers, dishwashers. These are items that are normally found in any home. It is my opinion that to deny access for these items to the lower ground floor of each of these dwelling houses denies the effective and necessary use of each of the properties. 34. This also applies for the purposes of transporting any large or bulky building materials or machinery that may be necessary for any essential maintenance and repair work required to be carried out on the lower ground floor and rear yards of these properties. 35. Figure 10 in Mr. Haskew's report shows that the Lidgas Passageway existed as at 1952 and therefore at least from that time it has been available to be used as a path of travel. To my knowledge there is no evidence that the occupants of any of the Plaintiff's properties purposely chose not to use the passageway and there is no logical reason why any person would chose not to use it. The passageway provides a convenient and easy access to the rear of the Plaintiff's properties. " See also paragraphs 36-41 and 45 of Mr Kirk's report. I should note that Mr Kirk is also of the view that there was always a gate from 1943 onwards between No. 35 and the LP but for reasons I explain elsewhere I am unable to accept that assumption.
14. On the importance of gates there are three reasons why I prefer Mr Israel's view, supported by Mr Kirk, about these matters: 1. I think it is logical that gates would not be retained in a fence on repair (every 20-30 years on Mr Israel's evidence see T92.45) if they were not required for a purpose. That gates are of significance is exemplified in Gangemi per Seaman J with whom Wallwork and Ipp JJ agreed at p.511-512 and Destri Enterprises Pty Ltd & Ors v Donald James Maxwell [2012] NSWSC 295 in which Slattery J considered that the insistence upon the restoration of gates and erection of gates made "any abandonment case impossible" with respect to an easement [104] - [105]. Although Destri was looking at the significance of gates in the context of abandonment I think the underlying idea is the same. 2. If the only need for a passageway was as a dunny lane (as the CSP was up to 1899) there was no need to have a passageway in 1937 when the new subdivision was created whether for the Phillip Street properties or the Church Street properties. Mr Staas has given no explanation as to why, for example, Church Street owners would need access to Phillip Street if it was not to permit access to the rear of their properties. Nor was there any need for No. 35 to install a gate in 1995 and replace it in 2005. Mr Staas himself notes that the side gate was installed when access through the property (No. 35) became impossible. 3. Mr Staas's evidence was not informed by the actual use by the owners and their predecessors in title of the Phillip Street properties. This evidence reinforces the importance of the gates, and supports the views that Mr Israel and Mr Kirk both hold as to the likely use of the LP.

No. 39 Phillip Street

1. It is clear that most of the items in the bathroom, laundry and kitchen downstairs at No. 39 could not have been placed, or removed from, there without utilisation of the CSP and LP passageways. It is clear from Ms Stapleton's evidence that from time to time the passageways were used for that purpose by her parents and the owners of No. 43. To the same effect is the evidence of Mrs Dwyer that she and her husband used the passageways to replace their oven and when moving into the property to install the refrigerator/freezer, washing machine, floor boards, ladders, tools and an outdoor table (T182; Dwyer 30/10/2014). The evidence of Ms Stapleton, is that her mother also used the passageway when moving out in 2009 and prior to that on at least two or three occasions to install items such as a stove (T105-6). Mrs Ligdas's evidence is that she "did not observe Mrs Arnold's family ever regularly using the LP" (Ligdas 18/09/15). In cross-examination, when questioned about the use of the CSP and LP by Mr Arnold, Mrs Ligdas stated in the context of questions about Mr Arnold's use of the LP that Mrs Arnold "got permission" to use the passageway on at least one occasion (T288). I find that to be very unlikely given Ms Stapleton's evidence and I am unable to accept it having regard to my doubts about Mrs Ligdas's credibility but in any event there is no evidence as to when that occurred. If permission was sought after 20 years of use it does not assist Mrs Ligdas.
2. I accept the evidence of Mr Israel in his expert reports of 23 September 2014 and 17 December 2014 that due to the restrictive access to the lower ground floor, it would not be possible for the current refrigerator, washing machine or stove to have been installed via the stairs and that it would be "difficult if not impossible" to install a standard refrigerator.
3. There is evidence of Mr and Mrs Dwyer that they also used the passageway (until August 2012) to move the wheelie bins and Mr Dwyer's ladders and painting tools to the front of the property, to remove a soil patch from the yard, to carry out renovations in 2009, and when carrying out other repairs and landscaping (T182, 216-7). Mrs Dwyer states that she saw Mrs Ligdas and Magdalena on some occasions when using the LP (T183-4) which evidence I accept. Mrs Ligdas denies use by the Dwyers of the LP with the exception of the wheelie bins. Mrs Dwyer's evidence is that, until 2012, she believed the passageway was a "public lane" (T185). Mr Dwyer stated that he "wasn't sure" who owned the passageway (T218). Mr and Mrs Dwyer said and I accept that Mrs Ligdas did not tell them they could not use the LP at any time prior to August 2012 (and they heard that in or after August 2012 from Mr Hudson).
4. The continued use of the CSP and LP by persons for access to and from the rear yards of No. 39 and 41 Phillip Street is supported by the presence of the connecting gates from the rear of the properties to the CSP, as I have explained.
5. Ms Stapleton's evidence corroborates Mr William's evidence that his father kept a motor bike at the rear of No. 43 and used the CSP and the LP. She observed the use of the CSP and the LP over the years for purposes of garden waste and rubbish being carried out not only by her family but also mainly the Williams family. She observed visitors and tradesman utilising the CSP and LP to reach the rear of No. 39 and No. 43, and for the general maintenance of the downstairs and rear of No. 39 and 43, and large furniture for the kitchen, laundry and dining room. Ms Stapleton said, and she was not challenged on this (para 16), "I recall the passageway over Mrs Ligdas' property was always open and freely accessible to all who had access to the rear laneway throughout the period 1960 and 2010." She also said: "Our usage of these lanes was never in secret nor did we ever specifically seek permission. The Ligdas Passageway, accessed the Church Street Passageway and enabled us to access the rear gates of our properties."
6. Ms Stapleton did say that her mother kept her bins with which she had been supplied by the Local Council on the front verandah, this seemed to be a result of her husband having left the matrimonial home (which was in 1982): see para 7 of Ms Stapleton's affidavit and T104. I do not think this assists Mrs Ligdas because if the passageways were in use by each of the owners for a period in excess of 20 years before 1982 then the easement is established. Whether the LP was used for ice or other deliveries, children's access, playing, cycling, removal of garbage, passage with motor bikes, bicycles or on foot does not matter.
7. I think it is relevant to the question of whether, on the balance of probabilities, any objection was taken to the use of the LP prior to 2000 and whether Mrs Ligdas made any objection between 2000 and 2012. I find that she made no such objection other than to the configuration of a hopper that Mr Pillans wanted to install, in 2005.

No 41 Phillip Street

1. What I have said at [66] applies to No. 41 as well as No. 39. No. 41 is as small as No. 39 the only difference being that it has had its kitchen upstairs in more recent times. In my view, on the balance of probabilities, the owners of No. 41 prior to 1999 used the CSP and the LP for the purposes similar to those Mr Hudson has used them from 1999 to 2012 and that Ms Stapleton and Mr Williams described in their evidence, and that they did so regularly for more than 20 years.
2. In around 1982, renovations were carried out at the property. Mr Hudson alleges that the previous owner, Mr Armstrong, told him that materials were transported down the passageway for the purpose of carrying out the renovations (Hudson 12/12/14). Mrs Ligdas asserts that she observed the owners using the front door of their property for this purpose, not the LP (Ligdas 18/09/15). Mr Israel in his report of 17 December 2014 indicates that it is "possible" that the renovations were done without use of the passageway however in his view it would have been cheaper to remove materials using the passageway and there is some residual evidence that materials were stored temporarily in the LP: see Exhibit E. Mr Staas in his report disputes both the assertion that use of the passageway would have rendered the task cheaper and the assertion that fragments of building fabric "of unknown age and unknown origin" in the CSP suggest that the renovations were conducted using the passageway. Whilst Mr Staas might think that the passageway need not have been used, Mr Hudson's evidence of what Mr Armstrong said he did suggests otherwise and another example, albeit in respect of No. 43, in more recent times is found at Exhibit A1 p. 291.
3. There is evidence of Mr Hudson that he used the passageway to move furniture into the property in 1999, to install a hot water service in 2004, to bring materials in and out of the property when remodelling his back garden in 2004, and to remove tree branches brought down by storms on at least six occasions (Hudson 12/12/14). Mrs Ligdas's evidence is that she did not observe this alleged use of the LP (Ligdas 18/09/15). Mr Staas opined that some furniture in the property could have been moved using the staircase instead (T152), however it was a very tight fit- attempts to move a small cane chair during the view of the property have left marks on the door: T238.40.
4. Mr Hudson deposed to the fact that on numerous occasions between 2000 and 2012 he removed weeds, leaves and debris from the LP and placed it on Phillip Street for collection by the Council. He says that on several occasions Mrs Ligdas said to him: "make sure you don't put any of that rubbish in front of my place, put it in front of your property." (See para 89 Hudson affidavit p.74 Exhibit C)
5. Mr Hudson deposed to the fact that from 1999 and 2012 he used the LP on a weekly basis to take the rubbish bins to the front of his property and then back again after the Council collection. He says that he would greet Mrs Ligdas at least once a month and that Mrs Ligdas: "was always anxious that empty bins not be left near her place," and be moved away as soon as possible.
6. On one occasion in about 2005 Mrs Ligdas warned Mr Hudson about taking care when using the LP saying: "Be careful the brick paving could be very slippery when wet."
7. These exchanges are entirely inconsistent with Mrs Ligdas objecting to the use of the LP by Mr Hudson. Mrs Ligdas does not assert that she did not know of the use by the owners of No's 39, 41 and 35 to take their bins along the LP and she does not assert that she ever complained about it until 2012.
8. Mr Hudson wants to repair the fence which separates his property from No. 39, to replace the outhouse at the rear of the property, and repair and repaint woodwork the last of which tasks may well involve scaffolding. He also wishes to have removed a very tall palm which is located at the rear of the property.

Conclusion Re No. 39 and 41 Phillip Street

1. From the foregoing I conclude that the owners of No's 39 and 41 have all been using the LP to access the rear of the properties for various activities for a period in excess of twenty years prior to 2000 including for: 1. The removal of garbage and garden waste. 2. The delivery and removal of furniture and kitchen items for the kitchen, laundry and the downstairs portion of their properties. 3. The delivery of ice at least until 1960, and probably other consumables such as coke or other items that would be used in a kitchen or laundry or stored outside the house. 4. The transportation of equipment of a type stored at the rear of the properties. Mr Dwyer's ladders are an example of the type of equipment likely to be so stored at the rear and transported along the LP by the owners and tradesman between 1951 and 2000. 5. Foot passage from the rear whenever it was desirable not to attempt carriage of goods up narrow stairs. 6. Repainting of, and repairing, the rear of these properties

No. 35 Phillip Street

1. On the issue of No. 35 I summarise my conclusions based on the extensive evidence and taking into account the evidence of Mr Israel, Mr Staas and of Mrs Ligdas, Magdalena and Mrs Sacelly: 1. It is very likely that No. 35 did have rear access to the CSP from the time that No. 35 was built (about 1895), but by 1952 that access was no longer in place because the survey shows gates for No's 37 to 43 but not for No. 35. 2. From whenever it was before 1952 that No. 35 ceased to have access to the CSP, the owner of No. 35 had the means up to the 1970's of accessing the rear of their property by the southern side of the house- i.e. within the property. The slope of the land, about 2 metres from street to rear (see Exhibit A1 p.200), would have been quite similar to the slope of the LP. After construction of the hard stand and carport in the 1970's access to the rear within the property (but external to the house) was made difficult but not impossible. 3. In 1943 a gap existed at about the location of the side gate, giving the owners of No. 35 access into the LP. 4. In 1968 there may possibly have been a gate at the location of the side gate: see T55.47-T.56.26 but also T61.6 -T62.6. 5. In the 1970's Mr Latta created a hard stand and then a carport at the southern side of No. 35; there was a significant drop from the carport base to the lower level of No. 35. It was still possible to proceed via steps and possibly a ladder from the front of No. 35 to the rear within the property but it was not as easy as walking down the LP. Mr Latta also planted trees behind the garage. 6. In 1995 the then owner of No. 35, Mr Reece, turned the carport into a garage. This work led to him having no external access to the rear of his property and he installed a gate in the location of the side gate: T68.44 and Mr Staas paras 108(c) and 114. This work was the subject of an application to the Council. 7. In 2004/5 Mr Reece applied to Leichhardt Council to build an additional room in an area behind what was the carport and then garage on the southern side of No. 35. The plans included provision for the side gate, no doubt as Mr Staas surmises, because No. 35 continued not to have any external access to the rear. 8. There were, as at 1968, trees at the side of No. 35 in the middle of the property and close to the LP but whether those trees significantly impeded the progress of the owner from the front of the property to the rear is not possible to determine: see T57, T69.20-45, T81 and see Mr Staas's report at para 52.
2. I conclude that No. 35 did have access to the rear until that access was impeded in part by work done in the 1970's and then impeded entirely by the work done in 1995 but with the problem of rear access being solved by the side gate to the LP.
3. I have given extensive consideration to the question of whether it has been established, on the balance of probabilities, that there was for a twenty year period between 1951 and 2000 a rear gate at or close to the location of the side gate and I am not persuaded that it has. The 1943 gap and the "possibility" of a gate in 1968 does not in my view establish that on the balance of probabilities there was a gap or a gate to the LP for a twenty year period. The side gate was created in or after 1995 and that does not assist the first and second Plaintiffs because at best there is only a five year period up to 2000. The fact that there was a means of access through No. 35 up to the 1970's (at least), removes the possibility of an inference that the gap and a possible gate in 1968 were likely to have been part of maintaining access to the LP. Ms Stapleton did say too (paragraph 15) that No. 35 was "fenced off." The owners of No. 35 would have no need to use the LP if they could not access the rear of their property by a gate.
4. No right of way by prescription in favour of Mr Bilton and Ms Weaver is therefore established. I should note however that there appeared originally to be a dispute between Mr Bilton and Ms Weaver on the one hand and Mrs Ligdas on the other about Telstra wires and downpipes. Those matters were not ventilated before me in these proceedings and I should note that in rejecting the easement by prescription in favour of Mr Bilton and Ms Weaver for a right of way I am not intending to express any opinion on whether there is or is not an easement for pipes, cables and anything else located on the side of No. 35 protruding a few centimetres into the LP. On the view I take of the s.88K easement that is not a matter of any significance in any event.
5. As the evidence of the parties is relevant to the s.88K easement I shall refer to the further evidence relating to No. 35.
6. Without the LP, access to the rear of No. 35 is only via the internal staircase. I will need to consider separately the issue of significance of the fact that the lack of access is a result of the owners' predecessors' actions but it is a fact that there is no such access without the use of the side gate and the LP and that has been so since 1995, and use by the owners of No. 35 has been occurring since then up to August 2012.
7. I am satisfied that Mr Pillans and Mr Bilton have stored their garbage bins at the rear of the property and used the LP to take the bins to the street. I infer that this has been the process since 1995 at least.
8. The evidence of both Mr Pillans and Ms Weaver is that in January 2012, between exchange and settlement of the sale of No. 35, at the same time as the tree was removed by crane the LP was also used to bring in materials to repair the roof and garden wall (Pillans 06/06/16; Weaver 30/10/14).
9. Ms Weaver's evidence was that she and Mr Bilton used the LP on a weekly basis prior to August 2012 to move wheelie bins to the front of the property and that they also used the LP when they moved in to move large items in to the lower ground level, including a refrigerator, washing machine, dining table and benches (Weaver 30/10/14; T194). Ms Weaver further states that the passageway was used to carry out repairs to their balcony in March 2012 and to carry out repair work to their outer boundary wall (Weaver 30/10/14). Mr Bilton deposed to the fact that from February to August 2012 he used the LP to take wheelie bins from the rear of No. 35 to the front and that he had conversations with Mrs Ligdas about guttering, a Telstra box and a mound of earth at the rear end of the LP in March 2012 and she described the LP as "my passageway." That she would not permit the Plaintiffs to use the LP even for the wheelie bins was only made clear in August 2012.
10. The installation of a gate and the application to Council to permit renovations including the side gate in 1995 and 2004 are indicative of a wish to use the LP and there is no evidence of any objection from Mr Ligdas in 1995 or Mrs Ligdas in 2004.
11. There are items in No. 35 downstairs which would be difficult, if not impossible, to take up the internal stairs. There is the following further evidence about the use of the LP: 1. Mr Pillans also states that when he had "drainage repair work" done, workmen brought materials and equipment down the LP without objection from Mrs Lidgas. His evidence is that Mrs Lidgas only became "agitated" when the workmen began to install a "hopper head drainage box" and that in the end, an alternative drainage system was installed at greater cost (Pillans 6/5/16). In cross-examination, Mr Pillans explained that the hopper head drainage box would have involved an extension "in the air, technically above the lane" (T140). It appears likely that it was unsightliness (to Mrs Ligdas's eyes) that prompted the objection: T140.35. 2. A tree had to be removed from the yard of No. 35 which required use of the LP by tradesman: see paras 22 and 35 of Mr Pillans' affidavit (although the crane was placed, with Mrs Ligdas's permission at the side of her property and not in the LP). 3. The refrigerator, washing machine, dining table and benches were delivered to the rear via the LP and could not be removed intact without the use of the LP. 4. Children's bicycles are stored in the rear yard. 5. Repainting and repair of the properties requires access to the rear via the LP. 6. Removal of garden waste and rubbish through the property would be undesirable. 7. A defective dishwasher cannot be removed from the downstairs of No. 35.

Permission

1. The next question is whether the use of the LP by the owner of the properties has been obtained by force, secrecy or by permission. I am satisfied that there was no force or secrecy employed by the Plaintiffs or their predecessors in title. I do need to deal with the issue of permission.
2. In her affidavit Mrs Ligdas gave examples of when permission had been sought in relation to use of the LP but a number of these were requests from owners of properties other than the Plaintiffs' properties, or were examples of requests for permission after 2000 and even after 2012. I do not think anything that occurred after August 2012 has any bearing on the matter. The period 2000 to 2012 is relevant to the question of whether the Plaintiffs were using the LP without objection by Mrs Ligdas or her husband. I set out the specific items of Mrs Ligdas's evidence for the period 1959 to 2012 relevant to this: 1. In about August 2005 Mr Pillans asked if she would sell the LP to him to which she refused to do (para 46 of Mrs Ligdas's affidavit). 2. In March 2012 Mr Bilton asked "can I use the passageway to do the repairs" (para 66 of Mrs Ligdas's affidavit). 3. In 1996 Mr Reece installed a wrought iron gate "at the top of the LP" see para 81. Mrs Ligdas says that her husband told her about the request and that he had agreed on a temporary basis, because "our fence was in need of repair." The gate had been installed previously as a gate to the carport and was no longer needed. 4. Mrs Ligdas's permission was sought to place a crane in her driveway to lift a tree at the rear of No. 35.
3. Dealing with each of the matters: 1. Mr Pillans does not recall that he raised the question of a possible purchase of the LP but says that he was considering that and he decided against it. There is no dispute by the Plaintiffs that Mrs Ligdas owns the land over which the easement was created. A discussion about the sale of the strip of land is not relevant to the questions in issue. 2. Mr Bilton says a new timber double door and window unit for the lower ground floor was needed and the only way it could be brought in was via the passageway. He says that Magdalena saw himself and the work men carrying the unit down the LP and made no objection. Magdalena denies that. Mr Bilton does not deny expressly asking for Magdalena's permission, but his position was that he was entitled to use the LP and it is unlikely that he did seek permission: see his version of his conversation with Mrs Ligdas at para 12 of his first affidavit. 3. Mrs Ligdas does not assert that Mr Reece sought her or her husband's permission to install the side gate. I do not accept that Mr Reece did ask for permission to install a gate at the end of the LP or that Mrs Ligdas did tell her daughter that Mr Reece had asked for permission. I think that the absence of any complaint by Mr Ligdas to the side gate or objection to Council and the absence of any objection to Mr Reece paving the LP is probative as to the attitude of Mr Ligdas throughout the period of his ownership of the land i.e. 1958 to 2003 when he died. I think it is also indicative of Mrs Ligdas's view of the situation up until at least March 2012. In any event permission to install a gate at the end of the LP is quite different to permission to No. 35 to use the LP because Mr Ligdas owned the land on which the easement is located and he had the right to veto changes that affected his use of the LP and the use of other persons.
4. I have referred earlier to Mr Hudson's evidence concerning his conversations with Mrs Ligdas.
5. There is evidence of Mr Pillans that he used the passageway when moving furniture out of the premises in early 2012 and that prior to that, he used the passageway to take out wheelie bins and also "on the odd occasion" to move items from the back of the property (T136-8), and see paragraphs 13-24 of his affidavit.
6. In 2005, Mr Pillans and Ms Bray carried out renovations at the back of the property using the LP to transport ladders. On the evidence of both Mr Pillans and Mrs Ligdas, Mr Pillans sought permission to do so. Mr Pillans' evidence was that he knew the passageway was part of Mrs Ligdas's land but recalls his solicitor advising at the time of purchase that the passageway had been "used in a particular way for a period of time" (T137). That permission for tradesman access was sought by Mr Pillans (as a courtesy) after 2000 and it does not assist Mrs Ligdas if an easement had already been created (which, in any event, as I have held, it had not).
7. In 2011, Mr Pillans held a 50th birthday party at his property, using the LP to transport a marquee and pinball machines. He did not request permission from Mrs Ligdas, and her evidence is that she would have expected Mr Pillans to ask for permission.
8. Permission to place a crane in the driveway of No. 31 is not permission to use the LP but Mrs Ligdas's driveway. It adds nothing to the defence case.
9. I am satisfied on the balance of probabilities that prior to 2012 the owners of No. 39 and 41 (and No. 35 except for one occasion in 2005) have used the LP without seeking or being given the permission of Mr Ligdas or his predecessors in title, or Mrs Ligdas. I think it is significant that on Mrs Ligdas's evidence Mr Ligdas expressed no objection to Mr Reece in 1995 or the Council and Mrs Ligdas made no objection to Mr Reece or the Council in 2004 when plans showing the side gate to the LP were lodged. I infer that Mr Reece made the same or similar use of the LP that Mr Pillans did and Mr Bilton and Ms Weaver have sought to do.

Conclusion Re Prescriptive Easement

1. Counsel for Mrs Ligdas in his written submissions argues that the evidence of use of the LP by the Plaintiffs or their predecessors in title in 1937 to 2000 is "meagre at best" and that the evidence given in this case has largely been directed to the period after July 2000. It is true that the evidence of actual use prior to 2000 was limited but there is, for the reasons I have given enough to establish the easements in favour of No. 39 and No. 41. That easement was an easement of precisely the dimensions and purposes designated in the easement recorded in the 1937 conveyance in favour of the Church Street properties. I am not persuaded however that a prescriptive easement has been established in favour of No. 35.

Section 88K

1. For the Court to grant an easement pursuant to s.88K: 1. The easement must be reasonably necessary for the effective use or development of the land (the "reasonable necessity" requirement). 2. The Court must be satisfied that the use of the land for which the easement is sought will not be inconsistent with the public interest (the "public interest" requirement). 3. The owner of the burdened land must be able to be "adequately compensated for any loss or other disadvantage that will arise from imposition of the easement" (the "adequate compensation" requirement). 4. All reasonable attempts have been made by the applicant to obtain the easement (the "reasonable attempts" requirement). 5. The Court is to specify the nature and terms of the easement if one is to be granted.
2. Counsel for the Plaintiffs submitted that "reasonable necessity" does not require "absolute necessity" and "something less will suffice", citing 117 York Street Pty Limited v Proprietors Strata Plan 16123 (1998) 43 NSWLR 504 and 508. It was further submitted that the Court's usual concern about compulsory taking of a propriety right (see Khatter v Wiese [2005] NSWSC 1014; (2005) 12 BPR 23,235 at [27] for example) is minimised in this case having regard "to the registered rights enjoyed by the Church Street properties over the Ligdas passageway." The Plaintiffs also submitted that past use is relevant to the question of whether the easement is reasonably necessary for the effective use or development of the land to be benefited: Owners Strata Plan 13635 v Ryan [2006] NSWSC 221; (2006) 12 BPR 23,485.
3. On behalf of Mrs Ligdas, it was submitted that "reasonable necessity" is "far closer to necessity than convenience" and cannot be reduced to the question of whether the use or development with the easement is substantially preferable to the use or development without the easement: ING Bank (Australia) Ltd v O'Shea [2010] NSWCA 71; (2010) 14 BPR 27,317 at [50]-[53] (per Giles JA with whom Campbell JA concurred). As to the easements in favour of the Church Street properties, it was submitted that this factor does not deserve much weight because there is a lack of evidence of regular use on behalf of the Church Street owners and the occupants of their properties would have "no occasion to use the Church Street Passageway as a means of accessing the frontages of their houses facing Church Street". It was submitted that the use by the Plaintiffs would constitute an "intensification", for example, use by Mr Dwyer on a daily basis to carry his ladders from and to the front of the property (T380).
4. In my view, the fact that the CSP and LP are already subject to easements in favour of the Church Street properties (and to No. 39 and No. 41 Phillip Street as well) is a very important distinguishing feature in this case. Loss or disadvantage to the servient owner is relevant not only to the question of whether adequate compensation can be made but also to the question of reasonable necessity; "the greater the impact, the harder it is to find reasonable necessity": Butt, at [16-88] citing Khatter at [27]; Weber v Ankin [2008] NSWSC 106; (2008) 13 BPR 25,231 at [121]; Bloom v Lepre [2008] NSWSC 79; (2008) 13 BPR 24,923 at [55] and the obverse must be relevant as well. Here, the impact is very much lessened due to the pre-existing easements although I accept the addition of one more owner does involve a slight degree of intensification of use. It is clear that the Church Street owners have been given keys to facilitate use of the CSP and LP, suggesting at least some use by them is contemplated by Mrs Ligdas. The fence which Mrs Ligdas erected is high and the movement of persons along the LP is not visible. The Plaintiffs are willing to accept a restriction on the use of the LP to reasonable hours (7am to 10pm might be appropriate). There is, in Mr Kirk's view very little prospect that absent any easements at all (Church Street or Phillip Street owners) Mrs Ligdas's property could be subdivided: see T98.10-T102.6, and no evidence to contradict that view.
5. On behalf of the Plaintiffs, it was submitted the evidence of past use of the CSP and LP by the owners of the Plaintiffs' properties outlined above supports the proposition that an easement is reasonably necessary for the effective use and/or development of their land. The Plaintiffs also submit that it is not sufficient to say that a "total rebuild inside" would overcome the problems of lack of rear access (T51).
6. Once again, the opinions of the parties' experts Mr Israel and Mr Staas were generally opposing. By way of summary, Mr Israel was of the opinion that (Israel 17/12/15): "… [W]hile renovations made to the terraces may have alleviated to some extent access restrictions for delivery of bulky goods and materials, the terraces would still require access via the "passages" for many normal household deliveries and for the sanitary removal of refuse and recycling materials. I now assert that such access is not simply a matter of comfort or convenience but is a practical necessity for day to day living commensurate with past and current community standards." Mr Israel's view is shared by Mr Kirk (see [72]) above.
7. I have earlier set out Mr Staas's views, (see [69]). Essentially he sees the use of the LP (and CSP) as matters of convenience and not necessity pointing to the large number of terraces in Sydney which do not have rear access and yet which are utilised.
8. Mr Staas' opinion was that "Mr Israel's assertions generally confuse matters of convenience with matters of reasonable or absolute necessity."
9. I think that No. 39 and No. 41 have better claims to an easement of necessity than No. 35 but because I have determined that they are entitled to an easement by prescription it is not necessary to dwell on their claims for an easement under s.88K.
10. The fact that No. 39 and 41 have an easement by prescription and therefore are to be added to the Church Street owners registered easements only further reduces the impact to No. 31.
11. I think it is significant that the owners of No. 35 sought and obtained approval from the Council for a gate in 1995 and again in 2004 and that they installed a gate in the LP without opposition at any time from Mr Ligdas or Mrs Ligdas- the relevance in this context being that they obviously saw a need to access the LP. Mr Staas says as much in his report at para 52. I think that highlights that the owners thought that rear access from the outside was of significance to their use of the property. That the owners of No. 35 would need permission from the owners of No. 31 to attend to work which might need to be done, or to deliver or remove a tumble dryer or dishwasher, or take in or out a fridge or a stove or furniture for the downstairs, or for the yard or to repair or replace drains and cables on the side of their house, or to repair or alter the rear structure of the house, would impose a significant restriction. I think it is clear that no permission would be forthcoming for Mr Bilton and Ms Weaver should they need it: for example see [4] above and also T198-199. They are reasonable uses and are more than "nice" or "preferable" and I do not think that these uses are particular to the present owners of No. 35.
12. I think that Mr Bilton and Ms Weaver have established that access to the rear of the LP is reasonably necessary for the enjoyment and development of the property in the context of a passageway which has existed since 1937, is available to five Church Street owners and to the owners of No's 39 and 41.
13. In coming to this view I have taken into account the fact that the previous owners have at least since 1995 precluded access within the property that was previously available. In most cases that would preclude the grant of an easement: see Hanny v Lewis (1998) 9 BPR 16,205, but once again context is important. The owners who blocked off access did so in the expectation that they would be able to access the LP because it was long established, clearly identified and no objection was made to plans to renovate and to obtain access to the LP via a new gate.
14. There was no suggestion that the easement if granted would be inconsistent with public interest, and it clearly is not.
15. In my view all reasonable efforts have been made by the Plaintiffs to obtain the easement since at least 17 February 2015. It is true that they did not by their lawyer's letter specify an amount which they were prepared to pay but they did enquire as to the compensation which Mrs Ligdas would want and offered to meet all ancillary costs of the easement and they were met with a letter which placed preconditions on those solicitors even obtaining instructions: see Exhibit D. I note too that in October 2012 the Plaintiffs asked the NSW Community Service Justice Centre to broker an independent mediation between them and Mrs Ligdas and that Mrs Ligdas did not respond to the invitation (see para 71 of Weaver first affidavit). I do not accept Mrs Ligdas's explanation for her non-attendance - if her lawyers were waiting for documents they could have sought to postpone the mediation and there is no evidence that they attempted to so. I think it was understandable that the Plaintiffs perceived Mrs Ligdas as being implacably opposed to granting an easement. Even when they offered $30,000.00 as compensation (admittedly on the fourth day of the hearing) that offer was not accepted notwithstanding that it was a figure at least double the maximum amount of compensation as assessed by the experts applying the correct test. I think it was clear to the Plaintiffs from the response of Mrs Ligdas and her lawyers that it was "extremely unlikely that further negotiations" would "produce a consensus within the reasonably foreseeable future:" Coles Myer NSW Ltd v Dymocks Book Arcade Ltd (1996) 7 BPR 14,638 per Simos J at pp.14,654-14.
16. The parties have agreed on an appropriate figure for compensation and it was not submitted on behalf of Mrs Ligdas that she is unable to be adequately compensated for any loss or disadvantage that will arise from imposition of the proposed easements. Mr Bilton and Ms Weaver will therefore be required to pay $10,000 to Mrs Ligdas as compensation for the easement in favour of No. 35.

Conclusion

1. In relation to No. 35 therefore I conclude that an easement should be created pursuant to s.88K in favour of Mr Bilton and Ms Weaver. There are some practical issues that will need to be determined in respect of the form of the easement and I will make directions concerning that after Counsel have had an opportunity to consider these reasons.

Costs

1. Counsel agreed that I might need to defer the question of costs. Given the fact that two sets of Plaintiffs have succeeded on one basis and the third set have succeeded on another basis I think it is appropriate to allow time to the parties to consider what the costs outcome should be and if agreement cannot be reached for that issue to be determined separately. 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: 12 September 2016