Tomara Holdings Pty Limited v Pongrass

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

2119/99 TOMARA HOLDINGS PTY LIMITED v NICOLAS ANDRU PONGRASS and LEIGH-ANNE CLUNES-PONGRASS

5706/01 TOMARA HOLDINGS PTY LIMITED v NICOLAS ANDRU PONGRASS and LEIGH-ANNE CLUNES-PONGRASS JUDGMENT 1 HIS HONOUR: These proceedings concern a piece of land over which there are rights of way which affect three properties in Double Bay. The land is at the end of what is for present purposes a dead end lane, being Castra Place east of Pearce Street. The property which has the benefit of the right of way the subject of these proceedings is 16 Pearce Street, which is on the south western corner of Pearce Street and Castra Place. The property burdened by the right of way is 2A Castra Place, which lies immediately to the north of 16 Pearce Street, but has its frontage (insofar as it has a street frontage) on Castra Place. The land burdened by rights of way is 3.05 metres wide, is wholly situated on 2A Castra Place and runs along the boundary between 16 Pearce Street and 2A Castra Place all the way to their rear boundaries, which are in the same alignment and which abut a property known as 36 Stafford Street. The whole strip of land 3.05 metres wide is the subject of a right of way in favour of 36 Stafford Street. The same strip 3.05 metres wide is the subject of a right of way in favour of 16 Pearce Street ("the right of way") but only for a distance of 6.095 metres from Castra Place. The configuration of the relevant land is shown in the plan which is a schedule to this judgment. 2 By cross claim in proceedings 2119/99 Nicolas Andru Pongrass and Leigh-Anne Clunes-Pongrass ("the defendants") originally sought an order under s 89 of the Conveyancing Act 1919 ("the CA") extinguishing or modifying the right of way on the ground that it ought be deemed obsolete. During the course of the trial, they abandoned the application to extinguish the right of way and sought only an order to modify the right of way by reducing it to a right of foot way only. By its statement of claim in proceedings 5706/01 Tomara Pty Ltd, the registered proprietor of 16 Pearce Street ("the plaintiff"), claimed injunctive relief relating to its ability to use the right of way, including the removal or re swinging of a gate at the Castra Place frontage and the removal of part of a wall on the boundary between 16 Pearce Street and 2A Castra Place. 3 The history of the right of way is as follows. The facts stated are not controversial, except where otherwise indicated. The right of way was created by memorandum of transfer H982926 registered on 28 May 1962 and conferred on the grantee a right to: "pass and repass with or without horses … motor cars and other vehicles of any description … for all purposes whatsoever connected with the use and enjoyment of the said land".

That grant was subject to conditions including: "(b) The said Transferees shall have the right to remove the existing dividing fence between [2A Castra Place] and [16 Pearce Street].

(c) That if the said Transferees shall remove the existing fence then the said Transferees shall at their own cost and expense erect a suitable dividing fence …

(d) The existing gate at the entrance to the carriage way from Castra Place shall not be removed by the said Transferees …

(e) The right-of-carriage way [sic] hereby granted shall enure so long only as the preceding conditions are observed and performed and the grant thereof may be revoked by the said Transferor by notice in writing at any time after the Transferees have failed to rectify any breach or non-observance …" 4 Tomara Barrientos is a director and shareholder of the plaintiff. The other directors and shareholders are her mother and her grandmother. The plaintiff bought 16 Pearce Street in 1969. The premises are a two-storey duplex. They were erected before 1962 but converted into a duplex thereafter. The rear external stairs were constructed at that time. The upstairs flat may be entered only from the rear of the premises. Mrs Barrientos was born in 1970 and has lived at 16 Pearce Street for the whole of her life. She is now married and she and her husband live in the downstairs flat and have let the upstairs flat. They now have a child and propose to raise a family at 16 Pearce Street. Prior to the erection of the residence at 2A Castra Place in about 1983 Mrs Barrientos' mother, Mrs Wittenberg, used to drive in and park her car on that property. Since the erection of that residence the car from 16 Pearce Street has been parked on a concrete apron at the front of that property or in the street. The right of way has never been used to gain vehicular access to the rear of 16 Pearce Street, as it is now claimed the plaintiff desires to do. 5 Rodney Adams has been the owner of 36 Stafford Street at least since 1975. In 1975 there was a fence on the boundary between 16 Pearce Street and 2A Castra Place, which was partly wooden paling and partly wire mesh with a wire mesh gate. The wire mesh gate was about three metres wide, but was, with Mrs Wittenberg's permission, reduced to about 2.4 metres by Mr Adams after he had done it some accidental damage in 1983. Mr Adams' affidavit evidence as to the use he has observed of the right of way over the years was as follows: "10 Since I have lived at 36 Stafford Street Double Bay, I have observed visitors to 16 Pearce Street using the right of carriageway together with tradesmen and gardeners, sometimes even parking on the right of carriageway to more easily gain access to the rear of 16 Pearce Street. I have also seen the occupants of 16 Pearce Street using the right of carriageway to take small boats and trailers from the rear of the property to Castra Place." 6 Prior to 1983 the properties at 16 Pearce Street and 2A Castra Place were at the same level at their common boundary. There were changes of level as between the two properties as a result of work done by Mr Adams in 1983 and work done by the defendants in paving the right of way in 1999. I should say at once that I do not accept that the difference of level that now exists, about 150mm, presents an insuperable barrier to a vehicle being driven between 16 Pearce Street and 2A Castra Place: I find that it would be quite practicable to facilitate that by ramping or in some other way. To the extent that there is now a kerb at the boundary, it could easily be removed 7 In 1998 the defendants completed the purchase of 2A Castra Place. Unfortunately, in 1999 there was an outbreak of litigation between the plaintiff and the defendants. There have been three court hearings. The first was the trial of the claim in proceedings 2119/99 before Hodgson CJ in Eq (as his Honour then was). His Honour delivered judgment on 1 December 1999. The second was the hearing by a Local Court Magistrate of an application under the Dividing Fences Act 1991. This was decided on 20 December 1999. The third was the hearing by Windeyer J sitting in the Common Law Division of an appeal (being proceedings 10093/00) against the Magistrate's decision. His Honour delivered judgment on 31 May 2000: Pongrass v Tomara [2000] NSWSC 494. 8 At the time of the defendants' purchase of 2A Castra Place there was no gate at the entrance from Castra Place to the right of way. Hodgson CJ in Eq found that it had been removed by Mr Scarf, the former owner of 2A Castra Place, in 1983 when that house was built. By early 1999 the defendants had decided that they wanted to remove the existing fence between 16 Pearce Street and 2A Castra Place, to replace it with a masonry wall, to pave the right of way and to instal a gate at its entry from Castra Place. In February 1999 the defendants paid the Council $1,297 to restore the driveway from Castra Place to the right of way. In March 1999 surveyors employed by the defendants substantially destroyed the existing boundary fence. The defendants then gave the plaintiff a notice purporting to terminate the right of way for refusing to reimburse them the $1297 and to reinstate the gate. Hodgson CJ in Eq found that the notice was invalid. His Honour made a declaration to that effect and also a declaration that paragraph (d) of the right of way had ceased to have effect. His Honour deferred decision of the cross claim, and that is one of the two claims now before me. His Honour ordered the defendants to pay the plaintiff's costs of the proceedings to date. 9 The conflict before the Magistrate was as to whether the replacement boundary fence should be wooden or of masonry and how it should be paid for. The defendants wanted the plaintiff to contribute half the cost of a masonry wall. The plaintiff argued that a paling fence would be adequate. The Magistrate agreed with that view. The defendants appealed to this Court. Windeyer J found in his judgment that the Magistrate had stated no reasons for his decision, which must therefore be set aside: par [11]. His Honour continued in par [12]: "It has now been agreed between the parties before me that the dividing fence will be constructed in accordance with the drawings on Exhibit 15 before the learned magistrate, and I would propose to make the appropriate order for that on the basis that where on that plan there appears to be a gap shown in the line of the fencing that gap is to represent the gateway which would give to the Tomara interests access to the right of way area and that the western end of such gap is the western end of the 20-foot length of the right of way."

His Honour then fixed the contribution which the plaintiff should make to the construction of that wall based on half the cost of a wooden fence. His Honour made no order as to the costs before the Magistrate but ordered the plaintiff to pay the defendants' costs of the summons. 10 Thereafter the wall was built in accordance with His Honour's order and the gate was installed at the Castra Place frontage. At around the same time the right of way was repaved. When the gate was installed the plaintiff was given a key which would open the gate manually but declined a device to open the gate either from inside a car or inside the house, both of which facilities the defendants had. This means that a driver from 16 Pearce Street has to get out of a vehicle to open the gate and, if the upstairs flat has visitors, the occupants cannot admit them to the premises without coming downstairs to the gate. 11 Only a week after Windeyer J's order as to the form of the fence was made by consent the plaintiff filed in these proceedings an affidavit by Mrs Barrientos suggesting for the first time that the plaintiff desired to use the right of way to gain vehicular access to the back yard of 16 Pearce Street. The relevant paragraph of her affidavit sworn 7 June 2000 is as follows: "15 For the purposes of comity and in an effort to salvage such a relationship as is possible in the circumstances between myself, my mother, and our neighbours, the Defendants, the Plaintiff had always agreed that the Defendants could have the brick fence they wanted, provided the Plaintiff did not have to pay for 1/2 of it.

It is anticipated that the brick fence will cost a few thousand dollars, and that it may have to be altered in the future, should the Plaintiff, or any further owner of 16 Pearce Street wish to redevelop our property, or should we decide to modify the back of our house to allow off the street parking or purely for car safety and convenience. However, those are all matters for the future." 12 Her evidence in cross examination as to the omission to mention the desire to obtain off street parking prior to this time was unconvincing. She was unwilling to assert positively that she had instructed the plaintiff's solicitor before the settlement of her desire to obtain vehicular access to the back yard. It is clear on the evidence that no mention of her desire to obtain vehicular access was made in court before Windeyer J or to the defendants' representatives at the time of the settlement. I find on the evidence that she had not expressed such a desire to the plaintiff's solicitors or to the defendants prior to giving instructions for that affidavit. Since then, the plaintiff has applied to the Council for development consent to have access to the back yard via the right of way for the purpose of parking a car. That application has not been dealt with. There has been evidence in this case as to its merits. There are doubts as to its practicability by reason of the shortness of the right of way. A corner of the duplex at 16 Pearce Street would have to be demolished to give access. There are also traffic issues arising from the fact that the car would have to be backed out into Castra Place. One traffic engineer is of the view that, with appropriate alterations to the levels between two properties, the access is quite practicable, at least for a small car. Another is of the view that it is impracticable and the Council is unlikely to permit it. 13 The plaintiff on 20 September 2001 by consent obtained leave to file in proceedings 2119/99 a statement of claim claiming injunctive relief as mentioned in [2]. This was a procedural nonsense since Hodgson CJ in Eq had totally disposed of the plaintiff's claim in those proceedings on 1 December 1999. When the inappropriateness of the leave was discovered during the trial I gave the plaintiff leave to file the fresh proceedings 5706/01 claiming the same relief: see my unreported judgment of 27 November 2001. 14 The issues to be decided between the parties in these proceedings are narrow. At the suit of the plaintiff they are whether the plaintiff should have mandatory injunctive relief for the alteration or removal of the gate; for the defendants to do all things necessary to permit the plaintiff to have hard wired buttons in its premises and to supply it with remote controlled handsets to operate the gate; and to remove part of the masonry boundary wall and do anything else necessary to facilitate vehicular access from the right of way to the rear of 16 Pearce Street. The issue now raised by the defendant is whether the right to bring vehicles on to the right of way ought be extinguished as obsolete. The facts relied on as establishing that the right of way should be deemed obsolete are pleaded in the cross claim as follows: "2 In or about 1983, the plaintiff allowed Mr Rodney Alexander Adams, the registered proprietor of 36 Stafford Street, Double Bay to lower the level of the driveway on the right of carriageway from the level which existed at that date. The effect of the lowering of the driveway rendered access to the plaintiff's property via the easement inaccessible by vehicular traffic. 3 In or about 1993, the plaintiff caused the rear side of its property adjacent to the driveway to be raised by approximately 60mm by constructing said, cement bed and pavers on the existing surface. The effect of the construction rendered access to the plaintiff's property via the easement inaccessible by vehicular traffic. 4 On or about 31 May 2000 the plaintiff consented to order in this court as to the size of the opening in the wall referred to in paragraph 6 of the Statement of Claim." 15 I shall consider first the issue of the partial extinguishment of the right of way. The question of whether the easement is obsolete can only be considered on the basis of its true construction. It seemed to be inherent in the argument on the part of the defendants that the only possible purpose of the easement was to drive through it on to 16 Pearce Street, a purpose which on the evidence had never been achieved. However, the evidence indicates that the right of way had from time to time been exercised by driving a vehicle on to the right of way for the purpose of unloading goods into 16 Pearce Street. This raises the question whether the rights conferred by the right of way include parking, or at least stopping, a vehicle on the right of way for the purpose of loading or unloading passengers or goods. 16 There are two principles which ought be borne in mind in determining the ambit of the rights conferred by an easement. Words conferring rights in a grant of easement must be construed in the context of the whole of the grant and in the light of the physical circumstances of the relevant land at the time of the grant: see per McHugh J in Gallagher v Rainbow (1994) 179 CLR 624 at 639 - 640; and per Hasluck J in Owners of Corinne Court 290 Stirling Street Perth Strata Plan 12821 v Shean Pty Ltd (2000) WAR 1 at 20 - 23 (not overruled as to these statements of principle by the Full Court in Shean Pty Ltd v The Owners of Corinne Court 290 Stirling Street, Perth Strata Plan 12821 [2001] WASCA 311). The grant of an easement also carries with it the grant of such ancillary rights as are reasonably necessary to its existence or enjoyment: Gale on Easements (16th ed, 1997 par 1-81); Butt, Land Law (3rd ed, 1997) [1678]; Pwllbach Colliery Company, Limited v Woodman [1915] AC 634 at 646 per Lord Parker of Waddington; Bulstrode v Lambert [1953] 1 WLR 1064 per Upjohn J at 1071. 17 This easement was created after the present building on 16 Pearce Street had been built, although it was only subsequently that it was converted to a duplex and the back stairs built. That building obstructed and obstructs a vehicle being driven from the right of way on to 16 Pearce Street. Even without obstruction by the building the manoeuvres of driving to and from 16 Pearce Street via the right of way would not be easy. There was, however, always utility in driving a vehicle into the right of way to facilitate the loading or unloading of goods and passengers for 16 Pearce Street. Indeed, in view of the difficulties in the use of the right of way for vehicular access to 16 Pearce Street (which were considerable in 1962, as they are today), the facilitation of the transport of goods and people to and from the rear of 16 Pearce Street (where there was always an entry to the ground floor and is now the only entry to the upper flat) would seem to have been the principal purpose of the right of carriage way. Since a purpose of the right of way over a small dead end strip of land was to set down and pick up goods and passengers, the right of way must confer a right to stop for that purpose. In view of the fact that the land affected also constitutes the only means of vehicular access to 2A Castra Place and 36 Stafford Street, the right to stop must be exercised so as to minimise inconvenience to those properties (see Bulstrode v Lambert supra at 1070), but the right in my view exists. 18 There are a number of cases concerning stopping or parking on rights of way which discuss the basis on which it should be assessed whether such rights exist. Bulstrode v Lambert supra was a case not dissimilar to the present. There, land was conveyed, reserving to the vendor, his tenants and workmen and "others authorized by him the right to pass and repass with or without vehicles over and along the land coloured brown on the … plan for the purposes of obtaining access to the building at the rear of the said premises and known as the auction mart." Upjohn J held that that grant carried with it the right to park pantechnicons on the right of way for so long as was necessary to unload them, even if this caused inconvenience to the adjacent premises. It was irrelevant that the right had not been exercised for some 10 years. In Robmet Investments Pty Ltd v Don Chen Pty Ltd NSWSC 23 May 1997 unreported Windeyer J acted on the principles in the Bulstrode case. In Butler v Muddle (1995) 6 BPR 13,984 Young J (as his Honour then was) held (at 13,986 - 13,987) that the right of way over the handle of a battleaxe block did not confer a right to park except insofar as "parking is a necessary part of the passing and repassing". While the construction of a document cannot be governed by decisions on other documents, the approach taken in those decisions reinforces the construction I have adopted. 19 On the basis of this construction I turn to the question of whether the right of way has been extinguished. Although, in my view, in the light of my construction of the right of way, the answer the question is quite clear, I remind myself of some principles of law. 20 The term meaning of the word "obsolete" in the present context was recently discussed in the Court of Appeal in Durian (Holdings) Pty Limited v Cavacourt Pty Limited (2000) 10 BPR 18,099, where Mason P (at 18,100) adopted the formulation of Jacobs J in Re Mason and the Conveyancing Act [1962] NSWR 762 at 764: "I consider that the word 'obsolete' can be taken to mean that the object of the covenant is now incapable of fulfilment or perhaps that it serves no present useful purpose".

In determining an application for extinguishment or modification there must be borne in mind the potentiality of such an order to expropriate proprietary rights. In the often cited words of Farwell J in Re Henderson's Conveyance [1940] Ch 835 at 846: "Speaking for myself, I do not view this section of the Act as designed to enable a person to expropriate the private rights of another purely for his own profit. I am not suggesting that there may not be cases where it would be right to remove or modify a restriction against the will of the person who has the benefit of that restriction, either with or without compensation, in a case where it seems necessary to do so because it prevents in some way the proper development of the neighbouring property, or for some such reason of that kind; but in my judgment this section of the Act was not designed, at any rate prima facie, to enable one owner to get a benefit by being freed from the restrictions imposed upon his property in favour of a neighbouring owner, merely because, in the view of the person who desires the restriction to go, it would make his property more enjoyable or more convenient for his own private purposes."

See also Parimax (SA) Pty Ltd [1956] SR (NSW) 130 at 131 per Myers J; Pieper v Edwards [1982] 1 NSWLR 336 at 341 per Hutley JA. 21 The facts that the use of the right of way for the loading and unloading of goods and passengers as enunciated in [17] above is still relevant and has been exercised from time to time during the subsistence of the right of way and that there has been no physical change which cannot be remedied that renders that use impossible negate any possibility of extinguishment. Even if vehicular access to the rear of 16 Pearce Street were impossible (to which proposition I shall turn in a moment) that would make no difference to the subsistence of the right of way as granted. 22 The use of the right of way for vehicular access to the rear of 16 Pearce Street requires development consent which has been applied for but not yet granted. Evidence as outlined in [12] above was led before me as to whether or not that access was practicable and whether or not development consent was likely to be granted. The last matter, particularly, is not suitable for the decision of this Court. That is a matter for the relevant authorities, namely, the Council and, if necessary, the Land and Environment Court on appeal. I need say only that, on the evidence before me, I do not conclude that it is impossible or even unlikely that development consent will be obtained for some vehicular access to the rear of 16 Pearce Street. This is not a case, like Durian Holdings supra, where it was established that the access was "no longer permissible in view of enforceable planning restrictions which reflect the long-term attitudes of the police and road traffic authorities" (per Mason P at 18,101). But whether or not development consent is granted is entirely a matter for the consent authorities. 23 It is apparent from the above that no case has been made out for the partial extinguishment or the modification in any way of the right of way. The case as pleaded depends wholly on the inability to proceed through the right of way to 16 Pearce Street. Even if this were established, it would not justify the partial extinguishment of the right of way, for reasons I have set out. Nothing else in the evidence justifies any modification of the right of way. The defendants' cross claim must fail. 24 I turn now to the plaintiff's claims for mandatory injunctive relief. The first claim for such relief is for demolition of part of the wall and removal or alteration of the gate to facilitate access to the rear of 16 Pearce Street for the purpose of parking. In favour of the grant of that relief at this stage are the following factors. The defendants' claim for extinguishment of the right of way has been abandoned and its claim for modification has been rejected. The continuing subsistence of the right of way, including a right to pass and repass with vehicles, is established. Subject to what is said below, the right of way may be used to gain access to the rear of 16 Pearce Street for the purpose of parking. The following factors are against the grant of that relief at this stage. So far as the evidence goes, the right of way has never been used to gain access to the rear of 16 Pearce Street for the purpose of parking. It cannot be used for that purpose without development consent. That consent has been applied for but not obtained. It is not impossible, but is far from certain, that that consent will be obtained. The plaintiff only recently consented to the construction of the wall in its present form at considerable cost to the defendants and solemnly participated in the embodiment of that consent in a court order. It, in effect, raised its claim for the removal of the wall in the week following the order. It had not before that time communicated to the defendants or the outside world its desire to have access for parking via the right of way. Its conduct in that regard has not been satisfactorily explained. Conditional injunctions (for instance, conditioned on the obtaining of development consent) are not very satisfactory. The injunction is always discretionary relief. In the exercise of my discretion, taking into account the matters set out in this paragraph, I decline to grant injunctive relief of this sort at this stage. 25 That does not mean that the Court would not in other circumstances grant such relief. Bearing in mind the subsistence of the right of way, the Court may, in appropriate circumstances, if there were a viable development consent for parking and proper provision to compensate the defendants for cost of the wall and gate thrown away, grant such an injunction. The application will have to be considered on its merits at the time it arises, if it does. In the meantime, in my view, the plaintiff should not face a chicken and egg situation. Although I cannot govern the decision of the consent authorities, which will carry out their duties as they think fit, they should be aware that, if development consent is granted, the Court may grant injunctive relief to permit its exercise. 26 So far as injunctive relief is sought to facilitate mechanical access to the right of way through the gate, the first defendant conceded, at least in evidence after the extinguishment of the easement was abandoned, that the plaintiff's access to the right of way should be facilitated. An appropriate order will be made to permit the plaintiff to have hard wired buttons to open the gate from inside both flats, a remote control to permit opening from inside a car and any other keys necessary to guarantee the occupants of 16 Pearce Street access through the gate at all times. The parties should attempt to agree on orders to this effect. 27 Short minutes of order should be brought in encompassing that matter and the disposal of the proceedings generally in accordance with these reasons. Costs may be argued at that time.

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