//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2003] WASC 210
Supreme Court of WA
2003-11-04
Mr J, Dr J, Smith J
Original judgment source is linked above.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : WAYELLA NOMINEES PTY LTD AS TRUSTEE FOR THE D J GORDON FAMILY TRUST -v- COWDEN LTD [2003] WASC 210
BETWEEN : WAYELLA NOMINEES PTY LTD AS TRUSTEE FOR THE D J GORDON FAMILY TRUST
Easements - Right of way - Prescription - Prescription Act 1832 (Imp) - Lost modern grant - Vehicles using plaintiff's parking bays using portion of defendant's parking area to manoeuvre - Whether usage for 20 years prior to issue of writ - Whether easement created
Auckran v Pakuranga Hunt Club (1904) 24 NZLR 235
Cargill v Gotz [1980] 1 WLR 521
Dalton v Angus (1881) 6 App Cas 740
Davis v Whitby [1974] 1 All ER 806
Diment v N H Foot Ltd [1974] 1 WLR 1427
Gangemi v Watson (1994) 11 WAR 505
Gardner v Hodgson's Kingston Brewery [1903] AC 229
Hough v Taylor (1927) 29 WALR 97
Ironside, Crabb and Crabb v Cook, Cook & Barefoot (1980) 41 P & CR 326
Jones v Price & Morgan (1992) 64 P & CR 404
Ministry of Defence v Wiltshire County Council [1995] 4 All ER 931
Neville v Dale (1990) V Conv R 54-382
Newnham v Willison & Ors (1987) 56 P & CR 8
Piromalli v Di Masi [1980] WAR 173
Pugh v Savage [1970] EWCA Civ 9; [1970] 2 QB 373
R v Oxfordshire County Council; Ex parte Sunningwell Parish Council [1999] UKHL 28; [2000] 1 AC 335
Sunshine Retail Investments Pty Ltd v Wulff [1999] VSC 415
Thomas W Ward Ltd v Alexander Bruce (Grays) Ltd [1959] 2 Lloyd's Rep 472
Union Lighterage Company v London Graving Dock Company [1902] 2 Ch 557
Davies v Du Paver [1953] 1 QB 184
Gangemi v Watson, unreported; SCt of WA; Library No 930473; 1 September 1993
Hamilton v Joyce [1984] 3 NSWLR 279
Johnston & Sons Ltd v Holland [1988] 1 EGLR 264
Maurice Toltz v Macy's Emporium Pty Ltd [1970] 1 NSWR 474
Presland v Bingham (1889) 41 Ch D 268
Tehidy Minerals Ltd v Norman [1971] 2 QB 528
Tickle v Brown [1836] EngR 254; (1836) 111 ER 826
1 ROBERTS-SMITH J: In this case the plaintiff claims a declaration that it is the proprietor of, and entitled to a right of way over an adjacent portion of the defendant's land and an injunction restraining the defendant, its servants or agents from interrupting or preventing the plaintiff's use of the right of way. The plaintiff says it has had continuous use of the land for 20 years immediately preceding the issue of the writ and that gives rise to the easement claimed. The writ was issued on 24 June 2002.
2 The defendant denies the claim on a number of grounds and counterclaims for a declaration that the plaintiff is not entitled to any right of way by way of an easement or otherwise over the defendant's land.
3 The parties own two adjacent commercial properties in West Perth with frontages on Wellington Street. The plaintiff's property is number 981 Wellington Street (Lot 12). The defendant's property is number 983 Wellington Street (Lot 11). Each has a small parking area at the back. Before the current dispute arose, the respective parking areas were not separated by a fence, nor was the borderline marked. One flat, bitumen surface extends over both areas. Access to both parking areas from Wellington Street is via a single laneway on the plaintiff's land.
4 Since 8 October 1980 there has been a registered easement allowing vehicular access over the laneway in favour of the defendant's land.
5 The plaintiff claims that vehicles using the four parking spaces (configured differently before and after 1985) on its land, moved into the defendant's parking area to complete their various and varying manoeuvres incidental to arriving in and leaving from the plaintiff's parking area. The plaintiff claims that the sum of the notional "tracks" or "swept paths" on the ground made by vehicles over the years cover a rectangular area of land some 4.2 metres by 8.5 metres on the defendant's land.
6 The plaintiff claims a right of way over the rectangular area such that it be kept opened and accessible to vehicles using the plaintiff's parking area.
7 The defendant wishes to utilise planning approval for a new building on its land which will cover part of the rectangular area. As part of its building operation, the defendant erected a fence during June 2002 on the boundary line of the parking area. That is what precipitated the current dispute.
8 The City of Perth gave approval for construction of an office block on 981 in 1979. The building was constructed not long thereafter.
9 Approval was given about the same time for construction of a building on the adjacent block to the east ("the Martindale building").
10 At that time, 981 was owned by Josgram Pty Ltd ("Josgram"). The principal of Josgram was Robert Huggins.
11 Following construction, Josgram occupied the building, trading as R A Huggins & Associates.
12 In 1982 Josgram sold the building to Mr and Mrs Paioff but took a lease back and remained in occupation whilst the Paioffs were the registered proprietors.
13 In 1985 Wayella Nominees Pty Ltd ("Wayella") purchased 981 and occupied the ground floor of the premises.
14 Mr Huggins continued to occupy the first floor through either Josgram or other entities controlled by him until 1988.
15 In 1988 the first floor was leased to an architectural business, Archiplan ("Archiplan") which remained in occupation until 1989.
16 From September 1989 to August 1990 the first floor of the building on 981 was leased to a company called Instant Colour Pty Ltd and from May 1991 until August 1994 to an engineering firm, Mitchell Cotter & Associates Pty Ltd.
17 When the Mitchell Cotter tenancy ended in April 1995, a firm of insurance brokers, Cerylin Pty Ltd ("Cerilyn"), took the lease of the first floor. The principals of Cerylin are David Rigden and Ross Douse.
18 The registered proprietor of 983 since at least 1979, was Latrobe Pty Ltd ("Latrobe"), a company controlled by Mr R D Buckland.
19 Cowden Limited ("Cowden Ltd") purchased 983 from Latrobe in February 1986. Cowden Ltd has also been the registered proprietor and occupier of 985 Wellington Street, which adjoins 983 on the western side, since 1980.
20 The plaintiff pleads that unless restrained the defendant intends to erect a building on the defendant's land which would permanently interrupt and prevent the enjoyment of the right of way by the plaintiff and in that event the plaintiff would suffer loss and damage by way of diminution of the value of the plaintiff's land.
21 By its re-amended defence and counterclaim the defendant denies that the plaintiff is entitled to the right of way claimed or that the plaintiff and those associated with it have exercised such a right.
22 The defendant pleads further that if the plaintiff and its predecessor in title used and enjoyed any right of way as alleged, then such was used with the permission of the defendant's predecessors in title until 4 February 1986, such permission being granted as part of a mutual access arrangement. Such permission on the part of the defendant's predecessors in title was for cars moving to and from parking spaces at the rear (south side) of the plaintiff's land, to drive over a limited portion of the vacant land at the rear of the defendant's land, so as to have reasonable ingress or egress from the parking spaces on the plaintiff's land.
23 Further still, and in the alternative, it is pleaded that if the plaintiff did use any right of way as alleged, the defendant did not know and did not have the means of knowledge of such use and enjoyment and that at all times since becoming the owner of the defendant's land on 4 February 1986 (except from 15 May 1989 to June 1990) the defendant's land has been leased to others, during which times the defendant had neither the power nor ability to stop such use and enjoyment by the plaintiff.
24 There is also a plea that any permission had been revoked.
25 By counterclaim the defendant seeks a declaration that the plaintiff is not entitled to any right of way by way of an easement or otherwise over the defendant's land and alternatively, if the plaintiff is entitled to such a right of way, a declaration that the extent of such right of way is to drive cars over a strip of the defendant's land 2 metres wide and situated immediately to the west of the boundary between the plaintiff and the defendant's land and approximately 9 metres long from the southern boundary of the defendant's land, for the purposes of ingress and egressing the parking spaces for vehicles on the south side of the plaintiff's land.
26 Robert Huggins is a forensic engineer. He was a director of Josgram between 1979 and 1985.
27 His evidence was that Josgram entered into a contract to purchase 981 Wellington Street from Wee Investments Pty Ltd in 1979. The purchase was completed and Josgram took possession on 8 November 1979. Josgram had engaged the services of architects Banham & Associates to design conceptual plans for a two-level office building to be built on the land.
28 The proposed building did not comply with requirements of the relevant town planning scheme and the Perth City Council required the consent of the adjoining neighbours before approving the development.
29 The registered owner of the property to the east, 979 Wellington Street, was Martindale Pty Ltd. Martindale's consent was obtained.
30 At that time the defendant's land at 983 Wellington Street had neither parking at, nor vehicular access to the rear of the building situated on that land.
31 In order to obtain a consent from Latrobe, the then owner of 983, Josgram, agreed to provide access to the rear of 983 by a right of way over the western portion of 981 Wellington Street.
32 That agreement was reflected in a letter from Mr Huggins to Mr Buckland dated 5 October 1979, in which Huggins agreed to the granting of a right of way 2.5 metres wide to the entire length of the western boundary of 981. The easement was granted for the sole use of 983 on four conditions, including that the ground levels at the rear of 983 be lowered to bring them to the same level as that on 981. Another condition was that a new retaining wall be constructed 750mm within the eastern boundary of 983, the cost to be shared in equal proportions between the owners of 983 and 981.
33 Mr Huggins was adamant that at no time during negotiations did he obtain Latrobe's consent nor at any time did he seek or did Mr Buckland give permission or agree, to Josgram using Latrobe's car parking area to manoeuvre or park vehicles or cars.
34 Latrobe gave its consent to the building plan and the City Council gave planning approval.
35 The constructed building consisted of a two-level office block extending almost the full length of the property. It had a rear undercroft area.
36 At that stage the building had parking at the rear in an east-west configuration as shown at Plan A attached to these reasons. I should note that neither then nor at any later stage were parking bays on either property actually marked by lines on the ground nor otherwise. The designation of them in evidence as bays by particular numbers was for convenience and ease of reference only.
37 The right of way in Latrobe's favour through 981 allowing access to the rear of the building at 983 was registered by transfer.
38 All vehicles parking at the rear of the building used the laneway on 981 for access.
39 Following completion of the office building, Mr Huggins' engineering firm, R A Huggins & Associates, occupied the whole of the building.
40 In November 1982 Josgram sold 981 to Mr and Mrs Paioff and leased back the first floor of the building. It was a term of the lease that Josgram was entitled to all of the car parking bays on the property. In practice Mr Huggins' employees continued to use them.
41 This continued to 1985 when Wayella purchased the property. Thereafter, Wayella had exclusive use of two of the car bays at the rear and Josgram retained the other two bays.
42 About that time Mr Huggins began to spend a considerable proportion of his time in Sydney. He took in a partner, Bruno Rinaldi, who assumed primary responsibility for the business in Perth. R A Huggins & Associates was subsequently incorporated as Huggins Rinaldi Pty Ltd.
43 Between 1979 to 1985 the layout of the parking bays primarily continued to be that as shown in Plan A.
44 During that period Mr Huggins and his employees used the car bays as they were available from time to time - that is, none of them were allocated designated bays.
45 According to Mr Huggins' evidence, so long as the parking bays were along the southern boundary of the property, it was possible to park by driving straight into them. Getting out was a different proposition. It was not possible to reverse out of any of the bays and manoeuvre so as to be able to drive forwards down the driveway to Wellington Street, without crossing the property boundary and intruding onto part of the 983 parking area. The simplest manoeuvre possible was from bay 1 on the eastern boundary of 981. The manoeuvre required is depicted in a general way on Plan A1.2 attached to these reasons. Exiting from the other bays required an increasing number of to and fro movements, but always intruding into the parking area of 983.
46 Mr Huggins testified that he did not ask the owner of 983 if he could do this, nor did he write to the owner nor contact it in any way regarding it.
47 As I have noted, the boundary between the two lots was not marked in any way, nor was it fenced or blockaded. It was a continuous bitumen surface covering both parking areas and the laneway. Mr Huggins simply used that part of the whole area that was necessary to enable him to drive into and out of the parking bays on 981.
48 He said that cars were regularly parked at the rear of 983 as shown on Plan A but they did not impede the manoeuvring of his car.
49 It is apparent from the diagram attached to the deed granting the easement over 981 dated 14 April 1980, that the right of way extending from Wellington Street ended 5.5 metres short of the southern boundary of the plaintiff's land. Mr Huggins was cross-examined about this in the context of an assertion by him that the occupants of the defendant's land used the rear of the plaintiff's land in the same way as he had described those parking on the plaintiff's land used that of the defendant.
50 The effect of his evidence about that in the end was that it was not something he had put his mind to, but he had seen a person do so on at least one occasion.
51 There were occasions on which Mr Buckland complained that someone had parked on the plaintiff's land in an incorrect position. Although there was some initial confusion about that in the course of his evidence, I am satisfied Mr Huggins was referring to a situation in which someone at 981 had parked behind car bay 4 on the plaintiff's land in such a way as to prevent access to the driveway by vehicles from 983.
52 Construction of the Martindale building was completed not long after completion of the building at 981. In the dividing wall between the Martindale land and 981, at the northern end of the undercroft area on 981, there was a gap of some 4.5 metres. That led directly into the basement parking area of the Martindale property, across a driveway which ran from Clive Street to Wellington Street, and as shown in diagram B attached to these reasons.
53 Mr Huggins was initially enthusiastic that he might secure ingress to, and egress from 981 through that gap and the Martindale driveway, but Banham & Co told him at the outset that would be unlikely. In fact not very long after completion of the Martindale construction, the owner of that property installed a fixed metal railing across the gap which remains to this day. The railing completely prevented vehicular movement between those two properties. Mr Douglas Gordon subsequently testified that a colourbond fence was also erected across that gap in 1997 or 1998. The fence still remains and both it and the railing can be seen in several of the photographs tendered as exhibits.
54 In cross-examination Mr Huggins said that before the railing was installed, someone did use the Martindale driveway once or twice, but stopped because it was too dangerous. The gradient down the driveway from Clive Street to Wellington Street was quite marked and because of the wall between the properties the entrance was completely blind.
55 I am satisfied on the evidence that although there may have been some discussions between the architects and the owner of Martindale about the prospects of the occupants of 981 having access through the Martindale property, that was never a real possibility and in fact did not eventuate.
56 Mr Huggins conceded that if there was no car parked in bay 4 as shown on Plan A (as occasionally happened) it would be possible for the cars parked in the other bays to exit without intruding as much onto 983. The complicating factor was the square concrete support pillar at the south-western corner of the undercroft, as that had to be avoided. He said that even with no car in bay 4 there would still necessarily be some intrusion onto 983 by vehicles exiting parking bays on 981. The area of intrusion would depend on the driver and the car.
57 Mr Huggins expressed a belief that this practice was part of an arrangement between "all parties" (namely the owners of Lots 11 and 12). His belief was founded on the fact that no-one ever suggested the practice was not permitted. He was asked about this in re-examination (t 157-8):
"You were asked some questions about the reference to an arrangement, paragraph 8?---Yes.
The belief there was an arrangement. Can I just direct your attention to the first sentence in paragraph 9?---Yes, 'My belief is based on the fact that no-one ever suggested to me that the practice was not permitted.'
Yes. What belief are you referring to in that paragraph?---The previous paragraph that there was no formal agreement.
You speak in the previous paragraph of a belief that there was an arrangement that was understood by all parties?---In the latter part of it.
Yes. Is that still your view as to the nature of any arrangement in relation to entitlement to use the land at the rear based on that same fact?---Is it still my view?
Yes?---Well, no, I think I didn't use very appropriate wording in that situation by the sound - by what has come up under cross-examination.
Can I ask you when you speak - withdraw that question. Did you ever have any discussion at all with Mr Buckland at all about the use by you or your tenants of the rear of 983, lot 11?---Of Buckland's property?
Yes?---Not at all.
Did Mr Banham ever speak to you about any discussion he had had with Mr Buckland about the use by you and all your tenants of the rear of 983?---Not at all. Mr Buckland has a very brusque demeanour and really, as I say, I don't ever recall going into his office, I didn't even know he'd sold his premises in 85 until I read - until more recent times with the documentation and really our communication was a phone call if he had a complaint about someone parking in the early days until we got that sorted out with our customers."
58 Douglas Gordon is an accountant and a director of the plaintiff, which is trustee of the D J Gordon Family Trust. It was Wayella, in its capacity as trustee, which purchased 981 Wellington Street from Mr and Mrs Paioff in June 1985. Possession was taken on 12 August 1985. Since then, Mr Gordon's accounting practice, D J Gordon & Associates, has occupied the ground floor of the premises continuously until June 2002 when he moved the practice to 987 Wellington Street.
59 For most of the period the first floor of the building was occupied by a number of tenants at different times.
60 At the time of completion of the purchase, Josgram leased the first floor pursuant to a lease from Mr and Mrs Paioff. Pursuant to that lease, Josgram was entitled to the exclusive use of the four car parking bays at the rear of the building as well as one of two bays on the front verge of the land.
61 In August 1985, Josgram assigned its lease to Huggins Rinaldi Pty Ltd. At the same time the term of the lease was extended to expire on 30 October 1988. Pursuant to the deed of extension of lease, the tenants' car parking rights were restricted to two bays at the rear and one at the front of the building.
62 In practice Mr Gordon and Wayella's employees occupied two of the four bays at the rear of the building and the tenants occupied the other two from August 1985 onwards.
63 Huggins Rinaldi Pty Ltd vacated their premises on 25 August 1988.
64 On 26 August 1988 Archiplan occupied the first floor as a tenant for 6 months pursuant to an oral agreement which also entitled Archiplan to two parking bays at the rear of the building for the term of its tenancy. Archiplan occupied the premises until 26 February 1989.
65 From 1 September 1989 to 1 July 1990 Instant Colour Pty Ltd occupied the first floor and was entitled to two car parking bays at the rear of the building under an agreement to lease dated 17 August 1989.
66 From 20 May 1991 to 16 August 1994 Mitchell Cotter & Associates Pty Ltd occupied the first floor pursuant to a lease. That entitled the firm to two car bays at the rear of the building.
67 Cerylin has occupied the first floor of the building from 30 April 1995 under a lease dated 1 October 1995. That lease entitles Cerylin to use of two car bays at the rear of the building.
68 Throughout the period from 12 August 1985 to the present, car bay 1 has been used by Mr Gordon. Car bay 2 has been used by Wayella employees and D Snashall. Car bay 3 has been used by Mr Rinaldi, Mr Forley, Instant Colour Pty Ltd officer or employee, M Campbell, and D Rigden. Car bay 4 has been used by Mr Huggins, an Archiplan officer or employee, an Instant Colour Pty Ltd officer or employee and Mr R Douse.
69 Shortly after Wayella purchased the property, Mr Gordon changed the car parking layout to that shown on Plan C attached to these reasons. He did that because the pre-existing parking arrangement made it extremely difficult for people to park in car bays 1 and 2 and to get their cars out of the bays.
70 To park in bay 1, Mr Gordon would drive up the driveway and turn left into the undercroft immediately past the end of the wall of the building. The angle was such that it was not possible to park as close to the southern wall of the building as necessary. He would therefore reverse to his right and into the defendant's parking area across the boundary, before driving forward again closer to the wall and with the front of his car adjacent to, and facing, the eastern boundary line.
71 From that position it was relatively easy to exit. Mr Gordon was able to reverse to his right to bring his car into line with the driveway on 981 and exit in that way. For that manoeuvre it was not necessary to cross into the defendant's land at all.
72 As a whole the procedure was easier than that required with the previous configuration of the parking bays on 981 but still involved driving over the boundary and onto the parking area of 983 when parking.
73 This procedure was employed by Mr Gordon continuously from the date he changed the parking configuration until June 2002 when he moved his office to 987 Wellington Street.
74 He did not speak to the owner of 983 nor seek permission for this at any stage.
75 The cars parked at 983 in the positions shown on Plan C did not impede Mr Gordon's manoeuvres.
76 Mr Gordon did recall that occasionally an additional car would be parked behind the building on 983 but because he always arrived about 7 am and left about 7 pm it never caused a problem for him because at that time there were generally no other cars in either car park. According to his observation, the additional car would be parked on the eastern side of the others on that land and in a north-south alignment up to the rear of the block - it was never parked up to the rear of the building.
77 In January 2002 Mr Gordon received notice from the City of Perth of a development application by Cowden Ltd to build a three storey building on 983 Wellington Street.
78 On 10 January 2002 Mr Gordon wrote to the council on behalf of Wayella, giving notice of objection to the proposed alternation to the building plan on the ground that it would compromise the off-street parking at the rear of 981 to the extent that the tenants would undoubtedly terminate their leases if they were unable to utilise their current parking bays. He commented that if the revised plan were to be approved, it would substantially devalue 981 by making the off-street parking unworkable.
79 Wayella's solicitors, Kyle & Co, subsequently wrote to Cowden Ltd on 27 March 2002. They asserted that Wayella had a right of way, obtained by common usage for 20 years, over the rear portion of 983. If the development were to proceed in its then current form, Wayella's right of way would be obstructed. The solicitors advised that Wayella proposed that representatives of the parties meet to develop a method by which Cowden Ltd would be able to proceed with the development of 981 without obstructing the right of way. They added that if a suitable agreement could not be reached prior to the proposed redevelopment proceeding, Wayella would take action to protect its right of way.
80 Cowden Ltd replied by letter dated 12 April 2002. The terms of that appear to suggest that conciliatory discussions had broken down. It was a short letter which concluded:
"Your client has no right of way over our property and repeated trespass onto our premises will result in legal action being taken.
Please instruct your client that he is not to trespass upon our premises."
81 Mr Gordon said that until the time parking became an issue in relation to the City of Perth approval of Cowden Ltd's development at the beginning of 2002, it was only on the very odd occasion that he found a car parked in what Mr Cowden referred to as the fourth parking bay. Mr Gordon said that in the early part of 2002, the problem with the fourth car became more frequent and that occasionally he asked his secretary to speak to people in Cowden's office as a result of which the car was shifted to allow him to manoeuvre his vehicle in or out of his parking bay. He added that on occasions he received a complaint from Mr Rigden or Mr Douse and on those occasions would ask his secretary to deal with the matter in the same way.
82 In cross-examination Mr Gordon confirmed that the shaded area measuring 4.22 x 8.55 metres on 983 at Plan C is the area used for parking manoeuvring by vehicles on 981 and is the area over which Wayella claims the easement. He considered that he personally would not have used all of that area; he would use the whole depth of it but not the width.
83 Asked about his 7 am arrival time, Mr Gordon explained it was his habit to arrive in the office at 6.30 to 7.45 am daily.
84 So far as parking was concerned, even if there were no other cars parked at 981 at the time, the easiest manoeuvre was still to drive in, reverse back into the shaded area on 983 and then drive forward into bay 1. That was because of the necessity to avoid the concrete pillar at the edge of the undercroft. He said that given that there were not cars parked at 983 when he arrived, he may on occasion have driven onto more of the area of 983 than the shaded portion on Plan C, but never less.
85 To Mr Gordon's recollection, cars parked in the bays on 983 invariably parked facing to the west.
86 It was put to Mr Gordon that the hatched or shaded area being claimed was just an ambit claim and really had no basis in reality at all. He conceded he did not use the whole of the area, only what he described as "the turning circle". That was a curved portion of the area which he said would be used when his vehicle was being reversed out of car bay 1 onto the shaded area of 983 before being driven forward onto, and along the driveway on 983.
87 That description came from a diagram attachment "DG 4" to an affidavit sworn by him on 25 June 2002 in support of an application for an interlocutory injunction against the defendant, the relevant portion of which is shown below:
88 The shaded portion of 983 Wellington Street in that diagram does not represent the area claimed by the plaintiff, but is the whole of the parking area at the rear of that property.
89 Mr Gordon denied that when there was a fourth car parked on 983, it was parked up to the southern wall of the building on that lot. He adhered to his evidence-in-chief that it was, to his observation, parked on a north-south alignment against the southern boundary of the block.
90 Further cross-examined about the fourth car on 983, he said that despite what he had said in-chief, the fourth car never obstructed him personally. He never had a problem with it. He said that the content of his statement (which had been tendered as his evidence-in-chief) in this regard was simply incorrect; the position was that his secretary had asked Mr Cowden's staff to move the fourth vehicle to allow people from 981 to get in and out but he personally was never inconvenienced by the fourth vehicle. So far as complaints from people on 981 were concerned, he thought it was usually Mr Rigden who complained. Mr Gordon would then ask his secretary to go into the office at 983 and asked for the vehicle to be moved. Again, contrary to what was in his statement, he did not think he had ever received a complaint from Robert Douse because Mr Douse would never have complained.
91 When such a complaint was made the car was either moved to allow for whoever it was to get in an out or the car was not parked there the following day. He said they (the occupants of 983) never had a problem with it - "they were fairly accommodating".
92 Counsel for the defendant referred Mr Gordon to a letter written by Kyle & Co to Cowden Ltd dated 12 April 2002. That letter referred to a meeting on site that morning to inspect current parking practices and went on to state that:
"We have been advised that for the past several days a vehicle has been parked in the right of way restricting Wayella's tenants their usual passage over this land. We request that you address this matter in such a way that will ensure the right of passage to this land at all times."
93 Mr Gordon said he knew at the time the car was causing a problem, although he never took particular notice of exactly where it was. He agreed the car was not moved and said that they did not bother to press the matter because this dispute was then going on and everything was becoming untenable. He said that things were getting out of hand "so they [Cowden Ltd] weren't going to move it anyway".
94 David Rigden is an insurance broker and a director of Cerylin which trades as a licensed insurance broker under the name Rigden & Douse Insurance Brokers.
95 In April 1995 Cerylin leased the first floor offices at 981 Wellington Street and has occupied those premises continuously to the present.
96 By its lease agreement, Cerylin had the right to use two of the car parking bays at the rear of the premises. Since Wayella ceased using the other two bays in 2002, Cerylin's secretary has regularly used one of those spare bays. Mr Rigden used bay 3.
97 Rigden's practice was to drive up the driveway from Wellington Street, turn to his right across the boundary onto the southern end of the shaded part of 983 and reverse past the pillar to park with the rear of his car close to the eastern boundary of 981.
98 To exit from car bay 3 it was necessary for Rigden to drive forward onto the northern end of the claimed area of 983 before reversing back to the southern end of the driveway and then driving forwards down to Wellington Street.
99 From approximately the year 2000, he changed his car bay from 3 to 2 and from 2002 changed to car bay 1.
100 He stated that due to the nature of his work he used a car bay every week Monday to Friday, generally between 7.30 am and 8 pm, except when he was on holidays or away, which was about three weeks in the year on average.
101 A "responsive statement" of this witness dated 24 July 2003 was also tendered as part of his evidence-in-chief.
102 He said it was only in the last 6 to 12 months before Cowden Ltd's building on the front of 983 was demolished that he ever saw more than three cars parked at the rear of that lot. On those occasions the fourth car was parked at right angles to the other three vehicles parked on 983.
103 Mr Rigden remembered a few occasions when he objected to the fourth car because it made it very hard for him to manoeuvre his car into or out of the parking area on 981. On those occasions he spoke not to Mr Cowden but to Mr Gordon or his staff about it and asked if something could be done to stop the fourth car being parked there.
104 He said he had no recollection of any incident in which he had a conversation with Mr Cowden and in which he said to Mr Cowden that the fourth car made it difficult for him to get in and out. He said he had no recollection of Mr Cowden saying to him that the car was parked on the defendant's land and would continue to park there.
105 When the fourth car was parked on 983, it meant his "three point turn" would become a "23 point turn". He had to negotiate his vehicle around it by "jiggling" forward and backwards. Towards the end of the period that happened quite frequently.
106 Sometimes the fourth car was parked close to the northern edge of the area; other times it could be parked with the front very close to the southerly end. If, however, it was parked right in the middle, that made manoeuvring extremely difficult.
107 In re-examination, asked whether he was ever aware of any result of a complaint made by him, he said the car continued to be parked there, but was moved from a position where it was protruding onto the area of 981 very substantially, to a position much closer to the other three cars on 983 and at right angles to them, thus allowing more manoeuvring space for cars from 981.
108 Mr Douse used car bay 4 (as shown on Plan C) between 1995 and 2002. From June 2002 he began to park in car bay 2.
109 To park in bay 4, Mr Douse would drive up the driveway from Wellington Street, turn right into the car parking area of 983 at the southern end and reverse almost directly into bay 4 on 981.
110 To exit bay 4, he was able to drive forwards onto the driveway, but because of the necessity to avoid the concrete pillar, his vehicle would still sweep across the boundary of the properties and intrude by a slight semi-circular path onto the parking area of 983 before aligning with the driveway. He said that short of making very convoluted manoeuvres, if there were vehicles already parked on 983, the way he did so was the only, or best, way to get in.
111 Mr Douse used his car bay Monday to Friday generally between 6.30 am and 6 pm, except when he was on holidays.
112 He could not remember any occasion when he came to work or left at the end of the day when there were more than three cars parked at the rear of 983 Wellington Street. In fact usually there were no cars there. However, occasionally he would have to go out during the day to see clients and he could remember that on occasions there were four cars parked on 983 and he would have to manoeuvre his car much more than normal to avoid that additional car. It made it extremely awkward, although not impossible, to get in and out of his car bay. His recollection was that it was only in the last 6 to 12 months before the building on 983 was demolished that four cars were parked at the rear.
113 Mr Ronald Forlee is an architect and a director of Archiplan. He confirmed that Archiplan occupied the first floor offices at 981 Wellington Street from 26 August 1988 to 26 February 1989.
114 Archiplan comprised himself, another designer, Robert Fittock, and two support staff. Archiplan utilised bays 3 and 4. Forlee would use whichever of the two bays was available at the time of his arrival at work.
115 The manoeuvres he described to park in car bay 3 and leave from it were the same as those described by Rigden and Douse.
116 He used the bays predominantly during business hours Monday to Friday weekly. On most occasions when he parked his car at the rear of 981 there were three vehicles parked at the rear of 983 facing the western boundary of that land.
117 It was his estimation that when parking, his vehicle would encroach probably 2 or 3 metres onto the area of 983.
118 He agreed that although if there were no car in the adjacent parking bay, that would make manoeuvring easier, it was still not possible to park or exit without crossing the property boundary onto 983.
119 Elvira Kovacevich worked as Mr Gordon's secretary for Wayella from October 1981 until June 1992 when she resigned. She returned to work in that capacity in 1994 and has remained so since.
120 When Wayella moved its office to the first floor of 981 Wellington Street in 1985 the staff were Mr Gordon, a junior accountant and Ms Kovacevich.
121 Ms Kovacevich would normally park her car on the front verge of the property but did occasionally park in a car bay at the rear.
122 She stated in evidence that the change to the parking arrangements made by Mr Gordon occurred within a few months at most after they moved in, but it is clear that she was quite uncertain about that and it could really have been at any time from one to three months.
123 So far as she was aware the metal pipe barrier across the opening in the boundary between 981 and 979 Wellington Street in the undercroft was there for the whole time. She never saw the opening used by anyone.
124 Her statement (tendered as evidence-in-chief) was dated 24 July 2003. In that, she said that "in recent times" she had become aware that people were parking more than three cars at the rear of 983. Apart from seeing that happen herself occasionally, she sometimes received a request from Mr Rigden and Mr Douse to arrange for the fourth car to be shifted because it was making it almost impossible for them to get in and out of their parking bays. On those occasions she telephoned the office of Cowden Ltd or went over there and asked the staff to move the car. She said the car would then be moved to make it easier for Mr Rigden or Mr Douse to get in or out of their parking bay or sometimes the car would be moved out of the parking area altogether. She said there was no occasion when anyone objected to her about moving the fourth car.
125 In cross-examination she said that the fourth car was never always in one spot - she remembered it being "all over the place", but generally to the rear of the other three vehicles. It was never parked perfectly; it was never straight. Sometimes the rear end would be protruding into the parking area of 981.
126 When questioned about Mr Rigden and Mr Douse, it became clear that she tended to speak of them collectively and that it was Mr Rigden who would raise the matter with her. He would say that he could not get his car in or out because the fourth car was blocking his way.
127 She would not specifically go out to check and see if he could get out or not, nor would she watch him try to do so.
128 Ms Kovacevich was unable to say to whom she spoke at Cowden Ltd. She did not know any of them by name. It was just a general request to whoever answered the phone or whoever was there, that they move the car.
129 She was unable to say how many times this had occurred, but it was more than once or twice.
130 She said that as a result of her request, if the car was blocking the way, they would try and move it so that those from 981 could manoeuvre in and out. If it was in the way completely and they had nowhere to go they would drive it out the front of the premises.
131 Amanda Jane Campbell was employed by Mitchell Cotter as its manager during 1991 to 1994. During that period the firm leased the first floor offices at 981 Wellington Street.
132 Mr David Snashall the regional manager for Western Australia of Mitchell Cotter was the only other person in that office until nearly the end of the lease when other staff were hired.
133 Ms Campbell's evidence was that the parking configuration at the rear of 981 during the whole of the period she was there was that shown at Plan A, namely four vehicles in a south-west alignment.
134 She said she parked in what she described as car bay 4, the one at the end of the driveway.
135 She said she would drive into that by driving forwards along the driveway, turning right into the rear of the parking area at 983 and then reversing into car bay 4. To exit she would simply drive straight down the driveway.
136 According to Ms Campbell, Mr Snashall used the same method on entry and exit to bay 3 and she saw him do it on many occasions.
137 Cross-examined, she said that sometimes there would be another vehicle parked at the end of the driveway. When that happened she would park under the undercroft and move her vehicle as necessary if anyone wished to enter or exit.
138 The plaintiff also called an expert witness, Mr Levy, but I will return to his evidence later.
139 Colin Neil Cowden is a business proprietor and company director. He is the managing director and shareholder of Cowden Ltd.
140 Cowden Ltd began its corporate life under another name and there were several name changes until it became Cowden Limited on 19 March 1987.
141 Cowden Ltd carries on business as an insurance broker. From 31 October 1978 until 25 May 2002, it carried on business at 985 Wellington Street, that being next door to 983 Wellington Street, to the West. From 31 October 1978 the land at 985 Wellington Street was owned by S B & Q Nominees Pty Ltd as trustee for Cowden Ltd. Mr Cowden personally worked from the property at 985 during normal office hours (as well as before and after normal office hours) daily since 1978 in his capacity as managing director of Cowden Ltd.
142 Cowden Ltd became the registered proprietor of the land at 983 on 4 February 1986, having purchased the land from Perth Data Processing Pty Ltd ("Perth Data").
143 Perth Data was a company controlled by Mr Rodney Dean Buckland. Prior to the sale, Mr Buckland operated a business as a chartered accountant from that land under the name "R D Buckland, Chartered Accountant".
144 Cowden Ltd did not take possession of 983 after purchasing it. The property was immediately leased back to R D Buckland Proprietary ("RDB Pty") for a term of 2 years from the date of settlement of the sale of the property to Cowden Ltd.
145 RDB Pty obtained an extension of the lease from 30 January 1988 to 29 January 1989 with an option for a further term from 30 January 1989 to 29 January 1990. That option was exercised.
146 RDB Pty subsequently terminated the lease effective from about 30 May 1989. Thereafter, 983 Wellington Street was unoccupied until about July 1990. Cowden Ltd engaged a real estate agent to re-let the property.
147 From about July 1990 it was let to a variety of tenants successively who carried on business as "Dial-a-Nanny" and "Australian Nanny School". These were Auriol Pty Ltd, Raymond William Kerr and Susan Marie Kerr and Dial-a-Nanny (WA) Pty Ltd.
148 About June 1990 some renovations were carried out on the premises at 983 as a condition of the lease to Auriol Pty Ltd.
149 The nanny businesses were sold by Auriol Pty Ltd to the Kerr Family Trust in February 1994 with settlement at the end of March that year. The Kerrs took over the businesses and the tenancy about 1 April 1994.
150 In December 1995 the Kerrs entered into a contract for the sale of the businesses to M S Kovac on behalf of Dial-a-Nanny (WA) Pty Ltd. A new lease was granted to that company from about 26 January 1996.
151 From about July 1997 Mr K C James Newman succeeded Dial-a-Nanny (WA) Pty Ltd as the tenant of 983 Wellington Street for a short period.
152 It appears from the correspondence in evidence that Mr Newman failed to pay the rent when it fell due, such that by 17 October 1997 Cowden Ltd wrote advising that unless outstanding rent and outgoings were paid forthwith action would be taken to terminate the lease.
153 On 10 January 1997 Cowden Ltd wrote to their then solicitors Newton Vincent advising that Mr Newman had paid no rent nor met any portion of the outgoings since the lease agreement was signed in July the previous year. They advised that he had now vacated the premises and sought legal advice on what action could be taken to recover Cowden Ltd's entitlements under the lease agreement.
154 It is not clear from the evidence exactly when Mr Newman vacated the premises but it was clearly sometime prior to 18 November 1997.
155 According to Mr Cowden, after Cowden Ltd had commenced occupation of 985 Wellington Street in 1978, he was approached by Mr Buckland (principal of Latrobe which then owned 983 Wellington Street) who asked for permission to gain access to the parking area at the rear of 983, through 985 Wellington Street, which had street access from the rear.
156 Mr Cowden agreed to that. As it took away some car parking space on 985, Mr Buckland agreed to Cowden Ltd personnel parking two cars at the rear of 983.
157 At that stage the rear car parking areas of 983 and 985 were at similar levels, although not exactly the same; 983 was possibly a little lower that 985.
158 The car parking areas between 981 and 983 Wellington Street were not made the same level until the 1979 development at 981 Wellington Street.
159 Cowden Ltd's arrangement with Mr Buckland stood for a period of about 18 months to 2 years. It ceased when the development of 981 was finished and the rear car parking areas of those two properties were made the same level.
160 It was Mr Cowden's evidence that from approximately late 1980 or 1981 there had been a driveway through the undercroft of 981 Wellington Street into the Martindale property. That joined up with the driveway on the western boundary of Martindale, which exited onto Wellington and Clive Streets. He said this access-way was open until approximately 1997 or 1998 at which time it was closed with metal fencing.
161 I do not accept Mr Cowden's evidence that the access-way was open until 1997 or 1998. I prefer the evidence of Mr Gordon on this. The latter was in a much better position to know and had every reason to do so. It was effectively, his property. Mr Cowden had no particular interest in what was happening at 981 and was quite unlikely to have noticed the metal railing which had been installed across the opening. The railing is only about waist high and would not have been apparent when cars were parked in front of it - which was certainly the case shortly after Wayella purchased the premises in 1985. Even before that however, the railing is at the very back of the undercroft area and would not have been readily apparent to anyone looking from 983 and less so from 985. The colourbond fencing was probably erected in 1997 or 1998 and Mr Cowden probably assumed that was the first time the access-way was blocked.
162 Mr Cowden said that he was aware of the existence of the registered easement over 981 because Mr Buckland had told him of it at the time of the development. That information was confirmed when Cowden Ltd purchased 983 which by then had the benefit of a registered easement over 981 Wellington Street.
163 According to Mr Cowden, neither at the time Cowden Ltd purchased 983 nor at any other time did Mr Buckland or anyone else tell him that the drivers of vehicles parked on 981, in the process of parking or leaving the property, drove over any part of 983. He said further that he had no knowledge whether any of the drivers of cars parked on 981 used any part of 983.
164 He added that even after Cowden Ltd purchased 983, it never occurred to him that he had any interest at all in how cars parked on 981. He did not watch cars parking or exiting 981.
165 From Cowden Ltd's property at 985 Wellington Street, from which Mr Cowden worked, there is a position on the landing of the stairs between the upper and lower levels from which it is possible to observe the car park at the rear of 983. However, that was not a place where one would normally stand because it was only a window on a passage-way. Mr Cowden said that he certainly never stood there to watch cars parking and leaving 981. The car park on 983 was not otherwise observable from within 985 Wellington Street.
166 It was possible to observe the rear car park of 981 from the rear car park of 983, but normally cars were parked in both so it was difficult to see much.
167 Mr Cowden could not recall ever seeing a vehicle from 981 drive onto 983 in the course of exiting 981.
168 Mr Cowden said that during the period between May 1989 when RDB Pty vacated the property and about July 1990 when Auriol took a lease of it, the land was vacant and the rear of it was used intermittently for parking by Cowden Ltd staff working at 985 Wellington Street.
169 After Mr Newman vacated the land about November 1997, the property remained vacant. Mr Cowden permitted Cowden Ltd staff working at 985 to park their cars in the parking bays on 983 but left it up to the staff to organise the arrangements. He allowed the staff to park at 985 on the basis that they had to draw up a roster and he did not get to hear of any complaints. When Cowden Ltd acquired 983 it was initially not available for parking because it was occupied by tenants but when it did become available the Cowden Ltd staff roster was extended to include those premises.
170 Mr Cowden was aware from his own observations that three Cowden Ltd staff parked their cars at the rear of 983 on any given day and that from either late 1997 or from sometime in 1998, the staff organised it so that a fourth staff member could park their car across the rear of the first three cars. He agreed that the positions of the cars as shown in Plan A accurately depicts the position in which the three cars were parked and that the fourth would be parked across the rear of them. That last car could be parked anywhere along that north-south alignment.
171 It was Mr Cowden's testimony that shortly after Cowden Ltd staff began to park the fourth car in that area he was approached by Vikki Carr, a Cowden Ltd employee, who asked him to go with her to the car park and speak to a man from 981. Mr Cowden "estimated" that this was during 1998. He said he went down to the car park with Ms Carr and spoke with a man whom he recognised to be David Rigden. Mr Rigden pointed to the car parked in car bay 4 on 983 and said words to the effect: "With that car there, it makes it difficult to get in and out". Mr Cowden testified that he told Mr Rigden the car was parked on Cowden Ltd's land and that they could continue to park there. He said that to the best of his recollection, in response, Mr Rigden shrugged his shoulders, walked away and did not say anything further.
172 This evidence was confirmed by Ms Carr. Mr Rigden did not deny that such a conversation occurred but said he simply had no recollection of it.
173 On the evidence as a whole I am satisfied that it did occur and I accept the evidence of Mr Cowden and Ms Carr in relation to it.
174 On 12 April 2002 Mr Cowden received a telephone call from Mr Steve Boni, a solicitor from Kyle & Co. That was after he had received the letter from Kyle & Co dated 27 March 2002. Mr Boni told Mr Cowden there was some interference with the parking on 981. They arranged to meet in the car park that day and shortly thereafter did so. Mr Boni pointed out the fourth car parked at the rear of 983. Mr Cowden told Mr Boni: "This is clearly absurd. The vehicle is parked on our land. It's not obstructing your land whatsoever". Mr Boni said that people on 981 could not park their cars because of the presence of the fourth vehicle on 983.
175 Mr Cowden said that he told Mr Boni he would meet with Mr Gordon. Following that he received a facsimile from Kyle & Co that same day and he responded by letter also that day.
176 Mr Cowden took a number of photographs after Mr Boni left. They are included in a bundle of photographs tendered by consent (exhibits P1-P28). They show the fourth car parked facing in a southerly direction at the rear of three other cars parked on the western boundary of 983. The rear of the fourth car is within a few feet of the building on the northern side of the parking area.
177 On 25 May 2002 Cowden Ltd vacated 985 Wellington Street in anticipation of demolition and redevelopment works on 983 and 985. On that same date staff stopped parking at the rear of 983.
178 A safety fence was erected on 18 and 19 June 2002 and the buildings at 983 and 985 were demolished between 24 and 31 July 2002.
179 In cross-examination Mr Cowden explained that the purpose of acquiring 983 was for the ultimate demolition of the buildings on it and redevelopment of the property in conjunction with 983. Thus, he did not inspect 983 prior to purchasing the property because he was not interested in it as such. It was not until some 18 months later that he went onto the premises.
180 During the period from May 1989 to July 1990 the land was vacant and Cowden Ltd staff were parking there. Mr Cowden did not observe anything in particular about the parking because it was not something of interest to him, although it was done with his consent and approval. He agreed that because there was no tenant at that time, he (through Cowden Ltd) was in control of the premises.
181 He could not recall whether the staff asked his permission to increase the number of cars parking on 983 to four, but he was aware it was happening and had no objection to it. He could observe it in the sense that although he could not see the car park from his office or any normal part of the Cowden Ltd building at 985, he was able to see the general area of the car park when he walked out to the rear of 985 to drive his car onto Clive Street.
182 Mr Cowden said he really did not bother about when members of his staff were parking at the rear of 983 - that was a matter for them and he left it to them.
183 Mr Chaney SC asked a number of questions of Mr Cowden about an occasion one Saturday morning following his meeting with Mr Boni when he drove his Jaguar car onto 981 to test the accessibility of the parking bays. At that stage the fence along the boundary line of the two properties was still in place. He was able to get his car in and out of the parking bays nonetheless, although that required a number of movements forwards and backwards "as in any carpark".
184 The cross-examination proceeded as follows (at t 376, 377):
"You managed to get your car in and out with the fence up. Is that the upshot?---That's quite correct, yes.
You could do it?---Yes.
A number of movements backwards and forwards, I take it?---Yes, as in any carpark.
And there were no other cars in the property area?---No. I did try it in a number of different positions and the Jaguar of course is not renowned as a short-wheel base with a small turning circle. I will agree that there was some manoeuvring to get out of each of the spaces.
Manoeuvring which would be at the very least annoying and inconvenient if you had to do it every day to come in and out?---Certainly inconvenient but if the alternative was to park in the street you would put up with the inconvenience.
What you would also do, I take it, Mr Cowden, if the fence wasn't there, you would, having now tried to experience this carpark, readily accept that anybody coming out of one of the bays under the undercroft area or towards the further south on 981 would choose to drive onto 983 for their manoeuvring?---They may elect to do so. That I don't know.
It is just commonsense, isn't it? The space if there - - -?---If there is space there people will - - -
People will use it?---People may use it, yes.
And having gone through that experience that you did with manoeuvring your car, you would accept, would you not, that it's fairly obvious, given the configuration of the parking on 981, that people would be likely to drive back into any vacant space in 983 in order to manoeuvre their car in or out of the carpark?---They may, depending upon which way you configured 981, whether it was configured in accordance with the town planning permission, which is the initial way which they parked, or whether you configure it the other way.
Yes?---Some may or may not need to.
Yes, and are you saying that because you think configured the other way, if you utilised the Martindale property, you could manage to get in and out without coming onto 983?---Most definitely so.
You accept though that if the Martindale property is, as it now is, blocked off then that would be at the very least extremely difficult if not impossible?---It would be less convenient, I agree with that.
So so long as the Martindale property was blocked off you would accept that there is an inevitability, given either configuration of parking, that people would utilise the tarmac area at the rear of 983 for manoeuvring?---I wouldn't say an inevitability. There is a likelihood that they would, yes.
You wouldn't say inevitable because you don't think it's impossible. Is that right?---You are asking me to predict what people will do.
I'm asking you to use ordinary life experience as a driver?---Certainly not inevitable.
All right, but the likelihood, you would agree, with either configuration, if Martindale was blocked off, is that 983 would be used?---Some of them would use 983, yes."
185 As to the incident with Mr Rigden, Mr Cowden said that he knew Mr Rigden reasonably well. He described him as a pleasant man but a fairly pedantic, complaining sort of person and regarded the complaint as fairly typical of him. Mr Cowden did not regard the complaint as particularly significant given what he saw as Mr Rigden's complaining nature.
186 Mr Cowden conceded in cross-examination that Mr Rigden's complaint was that the presence of the fourth vehicle made it more difficult for him to manoeuvre his car out. However, he said his reaction was (t 382):
"What are you going on about? You shouldn't be on my land anyhow. The vehicle is on our land. Why should you want to use our land?"
187 He agreed that Mr Rigden made him aware it was his intention to use the rear of 983 to manoeuvre his vehicle and that there was a possibility that drivers of other cars parked there would do the same. Nonetheless he did not take the matter up with Mr Gordon but nor did he say anything to Ms Carr or change anything at all because it seemed absurd to him.
188 A number of Cowden Ltd's employees gave evidence of the parking arrangements at the rear of 983, and in particular the occasional presence of a fourth vehicle parked there. Those witnesses included Mr Noel Austin and Ms Brooke Christie.
189 Mr Austin's evidence did not advance the matter much, but he did say that at least as at May 1999 only three bays were being used at the rear of 983.
190 Ms Christie commenced with Cowden Ltd in October 2001. A fourth car was routinely parked at the rear of 983 Wellington Street throughout the period of her employment. She said that whoever parked the fourth car would sometimes have to move it to enable other Cowden Ltd staff to get their cars out. She was not aware of any inconvenience to people parking on 981, nor of any complaints from them. She did agree that whoever was parking the fourth car would tend to park close to the other three cars on 983 so as to leave plenty of room for people parking on 981 to be able to get around. She agreed with the proposition that it was quite obvious to her that people parking on 981 had to come onto the parking area of 983 to get in and out.
191 Ms Sandra Schmook has been employed as a secretary and broker's assistant by Cowden Ltd since 20 September 1999. She testified that a fourth car was routinely parked at the rear of 983 Wellington Street during the period of her employment. According to her the car bays at the rear of 983 were not allocated and there was no roster while she was there. The first four people who arrived would get the bays. She normally arrived early to get one of the first three bays. Occasionally when hers was the fourth vehicle, she could recall being asked to move it so another person could get one of their cars out.
192 On the odd occasion, she found it necessary to leave the premises at lunchtime and when that occurred she would ask whoever had parked the fourth car to move it. When that did happen, the person driving the fourth car would move into her bay which she had left and when she returned she would park in the fourth car's position.
193 The position in which she indicated she parked her car to the rear of the other three was in a north-south alignment at the northern end of the parking area, as shown in the photograph to which I have earlier referred.
194 In cross-examination she said she had not paid particular attention to cars coming out of bays on 981. She said she would have been aware that they probably would have needed some manoeuvring space but she never saw them. She only saw that there were cars parked there.
195 Ms Vikki Carr was employed by Cowden Ltd as a secretary between July 1995 and July 2002. She drove her car to work regularly during that time.
196 Ms Carr was a smoker and used to take cigarette breaks at work at the rear of 985. From that position she would look down onto the rear car park area of 983, that being lower than the part of 985 on which she stood. She regularly saw cars parked at the rear of 983 and although the number varied from time to time, there were up to four cars there. When that occurred, the fourth car was generally facing north-south across the rear of the other three.
197 This situation as she described it, was that which obtained whilst there was a tenant in 983.
198 When the tenant moved out and 983 became vacant, she and other Cowden Ltd employees working at 985 began to park in the parking area in the rear of 983. To her recollection this was sometime during late 1997 or perhaps early 1998.
199 Initially the Cowden Ltd employees parked at the rear of 983 according to a parking roster. That was initially drawn up by another staff member but later by Ms Carr. The roster included all parking bays available to Cowden Ltd. There were six of them. They comprised one bay at the rear of 985, three bays at the rear of 983 and one bay at the front of the building on 983. The second bay at the front of 983 was permanently allocated to the receptionist.
200 A little later, a staff member obtained a position with Cowden Ltd which entitled them to the car bay at the rear of 985 so that was no longer available for the roster system. There were then only four parking bays available for five employees on the roster, including Ms Carr. The roster operated so that one person always missed out on a particular day.
201 The roster arrangement was changed sometime later when it was realised that a fourth car could park behind the other three cars at the rear of 983. The employees discussed that amongst themselves and decided to park in that way. From that time onwards, the roster no longer operated.
202 According to her recollection, the four car arrangement began in 1999, but it might have been earlier.
203 Under the new arrangement, none of the staff who had till then been on the roster, had a fixed parking bay. It depended on who arrived first at work. The last (fourth) person to arrive always parked behind the other three vehicles.
204 Ms Carr's evidence was that all four bays at the rear of 983 were thereafter used in that way until Cowden Ltd vacated the offices at 985 Wellington Street in May 2002.
205 She described the arrangements for moving the fourth car to enable other Cowden Ltd employees to move their cars during the day if they were required, in the same way as had Ms Christie.
206 Unlike Ms Christie however, Ms Carr often parked in the fourth position because she tended to be the last one at work and the last to leave.
207 Ms Carr testified that when they first started to park a fourth car on 983, a gentleman from 981 approached her while she was in the car park. He pointed at the fourth car and said to her: "It isn't on". From her description of this man, it is clear it was Mr Rigden.
208 She said that he told her that with that fourth car there, it made it difficult to get in and out. She saw Mr Cowden about it and he came down to the car park with her and told the man that the fourth car was on Cowden Ltd's land and not interfering with anyone else and that they could continue to park there - and so they did.
209 Although she was pressed at some length in cross-examination about whether she parked in the fourth position in such as way as to facilitate the manoeuvring of cars parking on 981, the effect of her evidence was that she really gave no thought to that.
210 She was quite clear that apart from the complaint by Mr Rigden, she was never asked to move her car so that somebody could get in or out of the property at 981.
211 I return now to the expert evidence of Mr Levy. Mr Levy's report (ex p 57) and his evidence were objected to by Dr Schoombee on the ground of relevance.
212 Mr Levy had visited and measured the parking areas of the respective premises.
213 To the plans he then prepared, based on the two parking configurations used on 981 referred to in the evidence (pre and post-1985), he then applied a vehicle turning template. The template he used was the B85 vehicle turning template specified in Australian Standard AS 2890.1 ("Parking Facilities - Part 1: Off-street Car Parking). This means that 85 per cent of cars would be of the size or smaller than the vehicle standard (or only 15 per cent would be larger).
214 In passing, I note Mr Levy's observation that neither parking area fully complies with the design standards specified in AS 2890.1 and that:
"... as such vehicles manoeuvring in and out of parking spaces on either property necessarily make use of a portion of land on the other property." (my emphasis)
215 That observation is not supported by the evidence - certainly not in respect of vehicles parked on 983.
"... to identify the portion of land on 983 Wellington Street (Lot 11) that would have been used in the ordinary course of events for parking manoeuvres in and out of the parking area on 981 Wellington Street (Lot 12) over the past 20 years."
217 The exercise undertaken by Mr Levy was not based on the evidence of those who parked at 981 about the manoeuvres actually made by them. It was rather the same exercise as he would have conducted had he been asked for an opinion on parking requirements off the plan of a proposed development. The design standard he used therefore is intended to show the minimum space which should be allowed in the design and layout of parking areas, based on vehicle turning templates.
218 The plaintiff has to prove actual use in a particular way, as of right, over a specific portion of the defendant's land. The best evidence of that must be the testimony of those people who can say they used the defendant's land in that way (or others who saw it being used). On that issue, Mr Levy's report is speculative. It is not probative of the fact of use. It is therefore irrelevant and not admissible on that issue.
219 But the plaintiff sought to rely upon Mr Levy's evidence in another way. As I apprehend it, on the assumption that people entering or exiting parking bays on 981 did utilise part of the area of 983 to manoeuvre, he formed an opinion (based on his vehicle turning template exercise) what the size of that area would have been. He did this by combining the "swept paths" the template produced for vehicles in each of the four bays on 981, in both pre and post-1985 configurations, and assuming direct and reverse parking in each instance.
220 In my view the evidence is admissible to show the area involved in manoeuvres of the kind described by the witnesses. Whether in the end it could be relied upon to reach a conclusion about the actual location and dimensions of the area so used would depend upon the extent to which it reflected the evidence of actual use.
221 The plaintiff's claim is based on 20 years continuous use of the claimed easement immediately preceding the issue of the writ. The claim is made under the Prescription Act 1832 (adopted in Western Australia by 6 Will IV CIV - see Piromalli v Di Masi [1980] WAR 173 at 176) and by the doctrine of lost modern grant. That doctrine is applicable in Western Australia (Gangemi v Watson (1994) 11 WAR 505).
222 In either case the use must be not by violence nor force, nor by stealth or in secret, nor by the licence or permission of the owner (R v Oxfordshire County Council; Ex parte Sunningwell Parish Council [1999] UKHL 28; [2000] 1 AC 335 at 350- 351; Hough v Taylor (1927) 29 WALR 97 at 98). The use must have been exercised as of right and must have continued to the commencement of the action, (Gangemi v Watson (supra) at 508).
223 The plaintiff bears the onus of proof in respect of all the above elements (Thomas W Ward Ltd v Alexander Bruce (Grays) Ltd [1959] 2 Lloyd's Rep 472; Jones v Price & Morgan (1992) 64 P & CR 404 at 408; Sunshine Retail Investments Pty Ltd v Wulff [1999] VSC 415 at [124] and the cases cited therein), although the defendant has an evidentiary onus of proving lack of knowledge, once the plaintiff has shown eg obvious open user (Gangemi v Watson, supra at 516; Diment v N H Foot Ltd [1974] 1 WLR 1427 at 1434).
224 Knowledge of the servient owner will be imputed where there has been open usage of such a character that an ordinary owner of land, diligent in the protection of their interests, would have, or must be taken to have had a reasonable opportunity of becoming aware of that enjoyment (Union Lighterage Company v London Graving Dock Company [1902] 2 Ch 557 at 570; Hough v Taylor, supra).
225 Wickham J explained the rational and requirements of title by prescription in the following way in Piromalli (supra, 178):
"Title by prescription is based on the presumption of a grant, and the whole law of prescription and the whole law which governs the presumption or interference of a grant or covenant rests upon acquiescence. In the case of that acquiescence which creates a right of way, there are five elements involved:-
(i) the doing of some act by one man upon the land of another;
(ii) the absence of right to do that act in the person doing it;
(iii) the knowledge of the person affected by it that the act is done;
(iv) the power of the person affected by the act to prevent it, either by an act on his part or by action;
(v) the abstinence by that person from interference for such a length of time as renders it reasonable for the courts to say that it shall not afterwards interfere to stop the act being done.
See Dalton v Angus (18810 6 App Cas 740 at 773, per Fry J."
226 In order to be as of right, the use must be inconsistent with any other reasonable inference, and if the enjoyment is equally consistent with two reasonable inferences, enjoyment as of right is not established (Gardner v Hodgson's Kingston Brewery [1903] AC 229 at 239).
227 The plaintiff claims that it and its predecessors in title have used the relevant portion of the defendant's land (to varying extents) for the purpose of access to and egress from parking bays on 981 for a period in excess of 20 years prior to the commencement of these proceedings, and that they have done so by themselves or their tenants as of right.
228 Josgram became registered owner of 981 and took possession of it on 8 November 1979. The defendant's land was then owned and occupied by Latrobe. I accept Mr Huggins' evidence that the discussions and dealings between him and Mr Buckland in relation to access by the Latrobe's servants and agents or its tenants at 983 through the driveway at 981, did not involve any discussion about the use of any of the area of 983 by people at 981 and nor was the matter raised at all. I also accept his evidence that he and other persons exiting parking bays on 981 found it necessary to traverse parts of the claimed area on 983 (depending upon which bay they were using).
229 I find this practice continued after November 1982 when Josgram sold 981 to Mr and Mrs Paioff, until Wayella purchased the land in 1985. It continued thereafter for a short time until Mr Gordon changed the parking configuration at the rear of 981. The new arrangements also involved people intruding into the claimed area of 983 when manoeuvring their vehicles into or out of the parking bays at 981.
230 On a claim for a prescriptive right or one under the doctrine of lost modern grant, the owner of a servient tenement is bound by the acquiescence of its predecessors in title (Auckran v Pakuranga Hunt Club (1904) 24 NZLR 235). Cowden Ltd became registered proprietor of 983 on 4 February 1986. The plaintiff submits that the claimed use in this case commenced sometime in 1980 when Mr Buckland's company Perth Data was the proprietor of the dominant tenement. It submits that the presumption should be drawn, in the absence of evidence to the contrary, that Perth Data, through Mr Buckland, knew of the use of the land by the servants, agents and occupiers of 981 Wellington Street.
231 The defendant on the other hand, denies the claimed use, or that it was capable of giving rise to a prescriptive easement.
232 It is submitted on behalf of the defendant that if there was any such use before 4 February 1986, it was with the permission, pursuant to a mutual access arrangement, of the defendant's predecessors in title, Latrobe and Perth Data, both of which were controlled by Mr Buckland. Any use after 4 February 1986 continued to be pursuant to that mutual access arrangement notwithstanding the defendant knew nothing of it at the time.
233 The defendant says it did not have knowledge or the means of knowledge of the claimed use at or after February 1986 but if it were the case that it had the means of such knowledge, then such use was pursuant to a tacit neighbourly consent or permission.
234 The evidence does not seem to me to reveal any mutual access arrangement. The correspondence between Josgram or its representatives and Latrobe or Mr Buckland, was concerned with access to the rear of 983. The consideration for and conditions relating to that did not bear upon people using parking bays on 981.
235 In cross-examination Mr Huggins effectively resiled from his earlier assertion that there had been a mutual arrangement for access. It became apparent that he had simply assumed the practice of driving onto the defendant's land was a "mutual arrangement" because nobody ever told him it was not permitted.
236 In his submissions Mr Chaney SC put it (t 472) that nobody specifically addressed the issue. Speaking of Mr Huggins, he said:
"... he simply didn't address this issue of the utilisation of the parking area. What happened was when the building was completed the area was there and he considered himself able to have the right to go on and utilise it, not by virtue of any agreement but because it was available to him and part of the same carparking area and so on."
237 Although I consider that observation to be essentially correct, I think it puts it too high to say that Mr Huggins saw himself as having a "right" to go upon and utilise the defendant's land. The clear effect of his evidence was that he did not think about it; the space was there, it was convenient for him to use it and there was nothing physically preventing him using it - so he did so.
238 There is no evidence that Mr Buckland, Latrobe or Perth Data knew the parking manoeuvres of those at 981 involved a transitory use of the parking area of 983.
239 The boundary between the two properties was not marked. Apart from some occasional trips in and out during the day, the use of the defendant's land involved at most four cars briefly transiting some part or parts of the claimed area during ingress to or egress from their parking bays at 981, on arrival in the morning and departing in the afternoon. The nature of the use was not such as to leave any permanent mark or obvious physical sign, such as a worn track or pathway. And nor (at least at the time) was it of such a nature as to prevent or cause any interference with the use of Latrobe, Perth Data or their servants, agents or tenants. In these circumstances and in the absence of any evidence specifically on the point, I am not prepared to infer actual knowledge on the part of the owner of the servient tenement (Latrobe and subsequently Perth Data) of the use by those associated with 981. Nor can the then owner and occupier of 983 be fixed with constructive knowledge.
240 In Union Lighterage Co v London Graving Dock Co, supra, Vaughan Williams LJ said (at 569):
"... it seems to me that a very little ought to put the owner of such a tenement upon inquiry and that if he makes no inquiry knowledge ought to be imputed to him. He is at least in the possession of knowledge which ought to have put him on inquiry. Indeed it appears both from the passage about the relation of acquiescence to prescription which I have quoted from Lord Blackburn's judgment, and from the summary which I have quoted, that proof of actual knowledge is not essential to acquiescence. It is sufficient if the owner of the servient tenement ought to have known. It is sufficient if he has the means of knowledge. This makes the user open." (Emphasis added).
However, as Goff LJ pointed out in Ironside, Crabb and Crabb v Cook, Cook & Barefoot (1980) 41 P & CR 326 at 335, that case involved a claim of an easement for support where the fact that a right was being claimed would be apparent, which was not necessarily the case in Ironside itself where an easement was claimed over land as occasion required by towed caravans deviating from a centre track to pass other vehicles.
241 In the present case the use was not of such a character that an ordinary owner of the land, diligent in the protection of its interests, would have, or must be taken to have, a reasonable opportunity of becoming aware of that use (see Dalton v Angus (1881) 6 App Cas 740, 801).
242 Beyond that, the nature and character and degree of such use was not such as to afford an indication or "plain intention" to the owner of 983 that a right was being claimed. There was not enough to suggest to the mind of a reasonable person in possession of the servient tenement the fact that a continuous right to enjoyment was being asserted and ought to be resisted (Gangemi v Watson, supra at 509 - 510; Ministry of Defence v Wiltshire County Council [1995] 4 All ER 931 at 935 - 936; R v Oxfordshire County Council, supra at 354).
243 Finally on this aspect, I would accept the defendant's submission that the casual, trivial and fleeting nature of the use was properly to be seen as the subject of tacit neighbourly consent or permission, rather than being user as of right.
244 To paraphrase Gobbo J in Neville v Dale (1990) V Conv R 54-382 at 64,728, if in fact during this period some belief existed on the part of the then owner of 983 that some use was being made of part of the parking area on that land for manoeuvring by people entering or exiting parking bays on 981, there was nothing to suggest that would be expected to be regular or other than an occasional and convenient use that, if it were known, would have received tacit neighbourly consent.
245 In support of its contention that the presumption should be drawn, in the absence of evidence to the contrary, that Mr Buckland knew of the use of the land by the servants, agents and occupiers of 981, the applicant relies on Pugh v Savage [1970] EWCA Civ 9; [1970] 2 QB 373 at 384, in which Cross LJ held the owners of the servient tenement should be taken to have known of the relevant use even during the term of a 10 year lease, as to which there was quite scarce evidence.
246 I do not think that case supports the proposition for which it is here cited as authority. The conclusion there turned specifically on the evidence in the case. There had been simply use for 8 years or so against the owners in fee simple, then a "nebulous tenancy" during a period of 10 years, during which the owner may very well have known about the use and indeed may have been able to stop it had he wished and then a period of use for 18 years against an owner in fee simple in occupation. It was in that context that Cross LJ wrote (at 384):
"When long user - here user for 36 years - of a way has been shown, I think, that the law should support it if it can, and that we ought to presume, in the absence of any evidence to the contrary, that the owners of 457 in the period 1932-1940 knew of the user ..."
247 The point at issue was whether (as the trial Judge held) the prescription period was interrupted by the 10 year lease. Dealing with this, Cross LJ said (at 382):
"In fact, the law on this subject is put in a different way in the most recent edition of what is now Megarry and Wade on the Law of Real Property, 3rd ed. (1966), where it stated as follows, at p. 840:
'The user must be by or on behalf of a fee simple owner against a fee simple owner. "The whole theory of prescription at common law is against presuming any grant or covenant not to interrupt, by or with anyone except an owner in fee." An easement or profit for life or for years, for example, may be expressly granted but cannot be acquired by prescription, for the theory of prescription presumes that a permanent right has been duly created at some unspecified time in the past. A claim by prescription must therefore fail if user can be proved only during a time when the servient land was occupied by a tenant for life or for years. But if it can be shown that user as of right began against the fee simple owner, it will not be less effective because the land was later settled or let.'
Since, in this case, the user proved began against a fee simple owner in or about 1932 and so continued for eight years before this rather nebulous tenancy came into existence, it may well be that if the judge had had the latest edition of Megarry and Wade referred to him, he would have reached a different conclusion from that which he did reach." (emphasis added)
"I think [the trial Judge] must have come to the conclusion that, as a claimant must prove either as freeholder or on behalf of a freeholder and against a freeholder that if there is no freeholder in possession at the time when the period of prescription should begin, he cannot start getting any advantage from it because the person against whom it would be made has not of necessity any knowledge of it, or, indeed, any power to prevent it, he being out of possession. If the case be limited in its effect to the Prescription Act, 1832, I think there is a great deal to be said for that proposition ..."
249 And shortly thereafter on the same page his Lordship added:
"Palk v Shinner, 18 QBD 468, cited by Cross LJ, satisfies me that if the claim were made under the lost grant theory, the fact that there had been an interruption by a tenancy such as the present would in effect have been put to the jury as one of the matters for them to consider but did not debar them from coming to the conclusion, taking all facts into consideration and considering the period before as well as after the date when the tenancy existed, that there ought to be held to have been at some time or other a grant in the terms necessary to provide the way."
250 However the nature or use of the defendant's land by the plaintiff may properly be characterised, there was some change in it in 1985, as I find, shortly after Wayella purchased and went into occupation of 981. that was as a result of Mr Gordon changing the configuration of the parking bays at 981. But that was not a change of any practical substance, even though it probably increased the extent to which those parking on 981 manoeuvred into the claimed area (or part of it) on 983.
251 The uses required to support a prescriptive claim need not be certain and uniform in extent and nature throughout the 20 year period (Cargill v Gotz [1980] 1 WLR 521 at 527 - 528). Where a change may be considered as substantially the exercise of the old right, the time before and after the change can be added to make up the period of 20 years (Davis v Whitby [1974] 1 All ER 806 at 809).
252 Cowden Ltd acquired the land from Perth Data in February 1986. One of the terms of the contract for sale was an immediate least back to RDB Pty. Mr Cowden purchased the property as an investment. I accept his evidence that he did not inspect it until 18 months later. The tenancy of the original lease back was 2 years. That was later extended for just over another 12 months. RDB Pty was in occupation until 30 May 1989.
253 On the authority of Pugh v Savage, the fact of the tenancy would exclude the plaintiff's claim under the Prescription Act, but not under the doctrine of lost modern grant - although in the latter case it is a factor which must be taken into account.
254 In Piromalli the respondent's predecessor in title was one Foster. The owner of the servient tenement was one San Miguel. He purchased the land and leased it to Caltex Oil (Australia) Pty Ltd. Foster (and subsequently the respondent) claimed an easement by way of a track along which they used to drive horses. Burt CJ said (at 175) that there was nothing in the evidence to support a finding and there was no finding that at any time between acquiring the land and leasing it to Caltex, San Miguel knew or ought to have known that Foster was driving his horses to and fro along the tracks. Indeed, there was no evidence upon which one could find there was at that time anything to see which would indicate the presence of a track. San Miguel denied that he knew and the trial Judge found him to be a truthful witness.
255 After setting out the facts in rather more detail, the learned Chief Justice went on to say (at 175 - 176):
"It is apparent from this recitation of the facts that for the period July 1954 until 14 July 1975, the servient tenement was held by Caltex pursuant to the lease and the extensions of it. During that period San Miguel as the owner of the servient tenement had no power to prevent Foster from using the land as a way to the rear of his premises. 'He could not maintain an action of trespass in his own name, because he was not in possession of the land, nor an action on the case for injury to the reversion, because in point of fact there was no such permanent injury as would be necessarily prejudicial to it; as, therefore, he had no remedy by law for the wrongful acts done by the defendant, the acts done by him or any other stranger would be no evidence of right as against the plaintiff so long as the land was in the possession of a lessee'. See Baxter v Taylor [1832] EngR 780; (1832) 4 B & Ad 72, per Taunton J at 75. furthermore, if San Miguel knew or ought to have known that Foster was using his land as a right of way after the discussion which he had had with him, and after Foster had placed the gravel upon it, it would not follow that he would have known or that he ought to have known that any right was being asserted as against him. On the contrary the only reasonable conclusion would have been that Foster was using the land 'as a result of some arrangement with the tenant'. See Davies v Du Paver [1852] 2 All ER 991 per Morris LJ at 1003.
And if it be permissible in a case based upon the prescription Act to go beyond the period of 20 years preceding the issue of the writ and to a point of time prior to the lease to Caltex to show the origin of the user so as to create a base for a submission that time continued to run during the term of the lease it would, in my opinion, be necessary to show a user as of right against the fee simple owner as at the time when the tenant of the servient tenement entered into possession and knowledge actual or imputed in the servient owner at that time of the acts done which constituted the user. If it be right to say that time can run against the owner of the servient tenement while he is out of possession and while the land is let to a tenant then it must in my opinion be shown that the owner of the servient tenement knew of the user or ought to have known of the user when he was still in possession and in a position to stop it. The user as of right and with knowledge in fact or imputed must begin when the owner of the fee simple of the servient tenement is still in possession. Time would not, I think, run under the statute in the face of a finding that the owner of the servient tenement had no such knowledge of the user when he went out of possession. That conclusion seems to me to be consistent with the judgment of Cross LJ in Paugh (sic) v Savage [1970] EWCA Civ 9; [1970] 2 All ER 353, and one cannot in my opinion formulate the law in a way more favourable to the respondents to this appeal:"
"... the evidence indicates that the proprietor of the servient tenement neither knew nor ought to have known of the adverse user at any time prior to the date of the lease to Caltex. Whether he knew or ought to have known after that date does not matter. It does not matter because after that date the fourth element, namely that he had the power to prevent the user is not satisfied. It is clear from the terms of the leases that he did not have that power."
257 As I am not satisfied there was actual or constructive knowledge by the owners of 983 prior to the purchase of that land by Cowden Ltd, of the use alleged, I find there was no acquiescence by the owner of the servient tenement such as to give rise to the presumption of a grant of easement in favour of the dominant tenement at that time. Since Cowden Ltd did not purchase the land until February 1986, that finding means the plaintiff's claim must fail.
258 Cowden Ltd was out of possession of 983 until January 1996 and then again from September 1996 to January 1998.
259 I accept Mr Cowden's evidence that at no time until the complaint by Mr Rigden was he aware of the use of the claimed area on 983 from people from 981. His evidence that he had no interest in the parking activities of employees of his own companies, much less those of the plaintiff, is consistent both with the purpose of the purchase of 983 by Cowden Ltd and with his personality. The purchase was as an investment. The intent was to demolish the existing building and construct a new one. Mr Cowden was not interested in the property as such. He was not personally interested in the parking arrangements at all. He said his staff could use 983 for parking provided they organised it themselves and he did not get to hear of any complaints. He worked at 985 Wellington Street, which was the property to the west of 983. He had an awareness that there were cars parked in both areas and generally the position they were usually in. However, unless he happened to be arriving or departing at the same time as someone from 981 was actually parking or leaving a parking bay on 981, he would have had no occasion to notice their brief use of part of the parking area of 983. And the physical layout of the rear of the respective premises was not such that his attention would have been readily drawn to what was happening in the parking areas of 981 and 983. His office did not overlook them and there was no position in which Mr Cowden would have been, for any more than passing moments, to even see the area concerned.
260 The evidence was that the Cowden Ltd staff roster was discontinued once they began parking a fourth car at the rear of 983. Mr Cowden thought that was during 1998. Ms Kovacevich said (in July 2003) that it was only "in recent times" she had become aware that there was a fourth car being parked at the rear of 983, but that was in the context of her long-term employment by Mr Gordon, from 1994. Mr Austin said only three bays were being used at the rear of 983 as late as May 1999. On Ms Christie's evidence there were four by 2001, when she started work there and Mrs Schmook said that was the case when she started in September 1999. I am satisfied that the parking of a fourth car at the rear of 983 commenced in mid-1999.
261 The defendant, whilst denying there was a prescriptive use, argues that even if there were, the presence of the fourth car created an interruption which brought any prescription period to an end.
262 Mr Chaney, for the plaintiff, argues that to the extent there was any interruption in use by the parking of a fourth vehicle, it occurred in mid-2000, after there had been a 20 year period for the purpose of lost modern grant, that it was not an interruption for 12 months and that it was only an intermittent and partial obstruction and not a sufficient interruption to defeat a claim under the Prescription Act or the doctrine of lost modern grant.
263 The 20 year period which has to be proved under the Prescription Act, is the 20 years immediately preceding the issue of the writ (Piromalli, per Burt CJ at 174).
264 I would not accept the plaintiff's submission that the presence of the fourth car did not constitute a sufficient interruption to defeat the plaintiff's claim.
265 The evidence of Mr Gordon, Ms Kovacevich and Mr Rigden demonstrate the presence of the fourth car did restrict access to the claimed area so as to make it difficult to manoeuvre in it for the purpose of entering or exiting parking bays on 981. Whilst it did not entirely prevent access, it did constitute an interruption of the plaintiff's use. It was an interruption which the plaintiff acknowledged and which continued for well over 12 months at a time prior to the issue of the writ on 24 June 2002.
266 I find that Mr Rigden complained about the fourth car shortly after it began to be parked there. That would therefore have been in mid-1999. When that complaint was made to Mr Cowden, he told Mr Rigden the car was parked on Cowden Ltd's land and refused to have it moved. He said it would continue to be parked there. The plaintiff thereafter did nothing to assert its right until June 2002 at the earliest, (when the plaintiff's solicitors gave notice of objection to the defendant's application for planning approval), and thereby submitted to, and acquiesced in, that interruption for well past the 12 month period required under s 2 of the Prescription Act (Newnham v Willison & Ors (1987) 56 P & CR 8).
267 Mr Gordon's evidence in respect of the fourth car was uncertain and confused. He initially said its presence obstructed him parking, but in cross-examination he said he had never had that problem personally but it was one which had been complained of by Mr Rigden. I think it clear enough that Mr Gordon's perception of the problem was based on what he was told by his secretary, Ms Kovacevich. He was not really in a position to know whether or not the car was moved as a result of any complaint to those at 983, and my impression is that he simply assumed it had been.
268 Ms Kovacevich was wont to refer to Mr Rigden and Mr Douse collectively, but when pressed it was apparent she was really talking about Mr Rigden.
269 There is no doubt that Mr Rigden did complain on "a few occasions" about the presence of the fourth car. He complained to Mr Gordon or Ms Kovacevich. He obviously did not complain every time the fourth car caused him a problem. He would negotiate around it, albeit with considerable difficulty.
270 I am satisfied that although he was no doubt constantly frustrated, he complained only when the location of the fourth car presented a greater obstacle than usual. There was nothing in his evidence which showed the fourth car was ever moved in response to his complaints - except perhaps to the extent that it did not protrude into the parking space of 981.
271 Ms Kovacevich could say only that she had requested people at Cowden Ltd more than once or twice to move the fourth car, but she could not say how many times. Again, she made no particular observations about what happened as a result, but appears to have assumed the car was moved. On the evidence, vague as it is, it is likely that the fourth car was moved on one or two occasions in response to her request, but simply as the response of an individual Cowden Ltd staff member in the same way as they responded to requests from their own staff to move it from time to time. It was not something seen as an exercise of any right by the plaintiff, its servants, agents or tenants, but as a matter of courtesy and personal accommodation. Furthermore, it was not something that occurred frequently. It was Ms Carr's car which was parked in the fourth position most commonly and I accept her evidence that apart from the one complaint by Mr Rigden, she was never asked to move it so someone could get in or out of a parking bay at 981.
272 In light of the foregoing reasons, the plaintiff's claim must fail. It is therefore unnecessary to make any determination of the area of 983 used by drivers moving into or leaving parking bays on 981.
273 I will hear counsel further on the orders to be made, including whether and if so what, orders should be made on the defendant's counterclaim.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : WAYELLA NOMINEES PTY LTD AS TRUSTEE FOR THE D J GORDON FAMILY TRUST -v- COWDEN LTD [2003] WASC 210 (S)
HEARD : 28-31 JULY, 1 AUGUST 2003 & 12 JANUARY 2004
BETWEEN : WAYELLA NOMINEES PTY LTD AS TRUSTEE FOR THE D J GORDON FAMILY TRUST
Costs - Special costs order - O 66 r 12(i) Rules of the Supreme Court - Claim for prescriptive easement - Whether case "unusually complex" - Whether amount of time reasonably required to prepare case for trial so substantial as to justify removal of limit for getting up
Collins v Westralian Sands (1993) 9 WAR 56
Esther Investments Pty Ltd v Markalinga Pty Ltd (1992) 8 WAR 400
Jewel Walk Pty Ltd & Anor v Kondinin Group Inc [2001] WASC 197
McLean v Kerville, unreported; SCt of WA (Burt CJ); Library No 6455; 1 October 1986
Robinson v Corse, unreported; SCt of WA (Anderson J); Library No 970183; 23 April 1997
Schmidt v Gilmore [1988] WAR 219
Tenbohmer v Eden (1992) 6 WAR 366
Verdell Pty Ltd v F & G Nominees Pty Ltd [2002] WASC 58 (S2)
Wayella Nominees Pty Ltd as trustee for the D J Gordon Family Trust v Cowden Ltd [2003] WASC 210
1 ROBERTS-SMITH J: By writ issued on 24 June 2002 the plaintiff sought a declaration that it was entitled to a right of way over the defendant's land, being lot 11 Wellington Street, Perth, and an injunction preventing interference with the exercise of that right of way. The claim was for a prescriptive easement based on 20 years' continuous usage. Following trial held before me between 28 July and 1 August 2003 I gave judgment for the defendant on 4 November 2003 (Wayella Nominees Pty Ltd as trustee for the D J Gordon Family Trust v Cowden Ltd [2003] WASC 210).
2 At that time I made a number of orders, including that the plaintiff pay the defendant's costs of the action to be taxed, including all reserved costs; that there be a certificate for second counsel and for transcript; that the defendant be allowed the reasonable costs of the report of the expert Ms Pickford and of conferring with her, and that the defendant have liberty to apply within 30 days for any other special costs orders.
3 By letter dated 3 December 2003 to the listings officer the defendant's solicitors requested that matter be relisted for the hearing of an application for a special costs order. The letter was accompanied by an affidavit of Allan William Newton sworn that day. Mr Newton is the principal of the defendant's solicitors and had the conduct of the matter for and on behalf of the defendant.
4 The application was listed for hearing on 12 January 2004. No formal application was filed until 9 January 2004, when the defendant's solicitors filed a minute of proposed orders. In my view the application should have been commenced by way of a notice of motion under O 4 r 2(a) of the Rules of the Supreme Court ("RSC"). The order sought by the defendant is to be gleaned from par 3 of Mr Newton's affidavit and from the defendant's minute.
5 The defendant seeks an order that the allowance for item 13 of the scale in the table to the Legal Practitioners Supreme Court Contentious Business Determination 2002 ("the Determination"); namely, getting up a case for trial, including work reasonably and necessarily undertaken prior to the commencement of proceedings be raised and the limit of $31,300 be removed and the taxing officer be directed to allow such sum as in the opinion of the taxing officer is just and reasonable. In other words, the application is essentially for a removal of the limit imposed in respect of item 13 of the Determination.
6 The application is put on two bases. It is put first on the basis that the case was unusually complex and, secondly, on the basis that the amount of time reasonably spent by counsel and solicitor in getting the case up for trial of itself was so substantial as to justify removal of the limit as to say is itself a good and proper reason for such removal. The application is made pursuant to O 66 r 12(1) RSC.
7 It is first submitted on behalf of the plaintiff, who responds to this application, that the application seeks an indefinite increase in the limit to item 13 and that is an application which ought not to be granted because the taxing officer would therefore be provided with no guidance whatsoever as to the largest item in the scale. I do not accept that threshold submission.
8 In Verdell Pty Ltd v F & G Nominees Pty Ltd [2002] WASC 58 (S2), Wheeler J made a special order for costs on the basis of the unusual complexity of that case. Her Honour ordered that the successful party's costs be taxed without regard to the relevant limits in the scale. A similar approach was taken by Anderson J in Robinson v Corse, unreported; SCt of WA; Library No 970183; 23 April 1997, and likewise in other cases it has been recognised that in the ordinary course of events where a special costs order is justified, it is sufficient to simply order that the limit be removed.
9 In Jewel Walk Pty Ltd & Anor v Kondinin Group Inc [2001] WASC 197 at [31], I made the observation that the effect of my making the special costs order sought in that case would not impede the discretion of the taxing officer. If made, the order would merely allow that officer to consider the charges made beyond the scale limit. It would remain entirely for the exercise of the taxing officer's discretion to determine whether or not they should be allowed as being reasonable charges for work necessarily or reasonably done. In similar vein at [45] I observed that whether or not in the end that work would be shown to have been necessarily and reasonably done or whether an amount should in fact be allowed in excess of the limit would be for the discretion of the taxing officer.
10 The principles applicable to an application of this kind have been established in a number of cases, including Schmidt v Gilmore [1988] WAR 219, Esther Investments Pty Ltd v Markalinga Pty Ltd (1992) 8 WAR 400, Tenbohmer v Eden (1992) 6 WAR 366, Collins v Westralian Sands (1993) 9 WAR 56 and Jewel Walk and Verdell, to which I have already referred.
11 The nature of the exercise to be conducted and the evidentiary material required for it were explained, particularly in Collins and in Verdell. Those and other authorities make it clear a Judge considering such an application is not engaging in a taxation. It is neither necessary nor appropriate for the Judge to examine items in a draft bill, line by line. What is necessary rather is for the trial Judge drawing, inter alia, on his or her knowledge of the trial to make a preliminary and provisional judgment whether on the face of it the amount of work done appears to have been reasonably done so as to constitute good and sufficient reason for making the order or, alternatively, as it is put in that way in this case, the case is of unusual complexity, such as to justify an order of that kind.
12 One point which does emerge from the authorities is that it is not sufficient for the applicant to show merely that work was done. The applicant must show why it was done or the necessity for it must otherwise be apparent to the trial Judge from his or her knowledge of the proceedings: that is to enable the Judge to make that preliminary and provisional determination, whether the work was reasonable and necessary. The point was, with respect, well made by Wheeler J in Verdell at [14] and [15], where her Honour said:
"14 Leaving aside the observations of Owen J in McDonnell at p 9 which may have been prompted by the circumstances of that case, and which I would respectfully suggest should not be seen as stating a general rule, it would appear that the following general propositions emerge in relation to the task of the Judge who determines whether or not a special costs order should be made. If the Judge has been the trial Judge, he or she will be able to draw on experience of the trial, which will be of great assistance in understanding the issues involved, and in appreciating the extent to which, for example, detailed preparation for cross-examination appears to have been necessary, or work appears to have been necessary beyond normal court sitting times to respond to matters arising suddenly during the course of the trial. Whether or not the Judge has been the trial Judge, a perusal of the pleadings, the transcript, and the submissions, together with the materials which may relate to interlocutory applications, will be of great assistance in understanding whether it was necessary for additional work to be done.
15 Whether or not the Judge has been the trial Judge, there may be work done of which the Judge is not aware. For example, there may have been unusually voluminous discovery, which is not reflected in the actual number of documents tendered at trial, or there may have been consultation with potential expert witnesses or research of issues of law which were not in the end reflected in the trial. Such work may not have been unnecessary in the light of what was known at the time, but may have resulted in agreement between the parties or a decision by one or another party to abandon an issue which at first appeared to arise. In those cases, it will be necessary for affidavit material to be placed before the Judge explaining in general terms what work was done and why it was done, and giving some indication of the time occupied by such work. It will, of course, be necessary to establish that, prima facie, costs appear to have been incurred which exceed those allowable under the scale. Whether this material is produced in the form of a computer printout, or a draft bill, or a summary prepared by the practitioner having carriage of the file, does not appear to me to matter. If the step is taken of producing a detailed schedule or a computer printout or the like, the Judge will not examine the material line by line, looking for possible duplication or overlap, or enquiring about the way in which every 10 minutes was spent."
13 I refer to Mr Cuerden's submission that the evidence would only be required where the work done would not be readily apparent to the trial Judge. In other words, where that would not be readily seen by the trial Judge it would be necessary to provide evidence of what was done and why. That submission, I think, is consistent with what fell from her Honour Wheeler J and I accept it.
14 In the present case the claim is supported in the evidentiary sense by the affidavit of Mr Newton, to which I shall return in a moment but which, in broad terms, claims that work to the extent of some 700 hours has been done in this case. No bill has yet been drawn and, as Mr Cuerden points out, that amount - or an amount reflecting that number of hours - may not in the end be claimed and that some work in any event may fall under other items in the scale. The affidavit is expressed in that way and put before me only for the purpose of indicating in general terms the defendant's submission that, first of all, the matter was unusually complex and, secondly, that the work done was so far beyond that ordinarily contemplated by the scale fee as to itself provide a good and sufficient reason for removing the limit.
15 I do not propose to set out here the details of the plaintiff's claim nor of the defendant's defence nor the evidence given at trial. Those details are sufficiently contained in my judgment delivered on 4 November 2003, which should be read together with these reasons.
16 In his affidavit Mr Newton deposes that when instructed by the defendant he learned that the defendant had culled documents relating to the property in question that were over seven or eight years old and so had virtually no documents from prior to 1994 or thereabouts.
17 The defendant had been registered as proprietor of the land in question on 4 February 1986. This is significant because the case concerned the alleged use of the defendant's land by the occupants of the plaintiff's land since 1979, a period of some 22 years. There was at least at the outset some uncertainty as to when the building works were carried out on the plaintiff's land, the defendant not being the owner of his land at the time.
18 In the circumstances Mr Newton deposes that it was necessary for him to carry out extensive searches of documents from a number of external sources in order to obtain information as to the relevant events since 1979. He refers specifically to the building works carried out in 1979 and searches of the records of the City of Perth relating to those works and the respective properties. He deposes that he inspected various files, including box files, on two or three occasions and obtained copies of them.
19 There was a large number of documents relating primarily to the works done in about 1979, but also other documents which he needed to review. He estimates he spent approximately 21 hours in carrying out searches at the City of Perth records and inspecting the documents and copies of them. Counsel also needed to review those documents and then additional time was spent collating that evidence. He annexes to his affidavit time sheets as annexure AWN1, which consist of 46 pages of close-typed documents headed "Cowden Time Sheets" covering the period 3 April 2001 to 19 November 2003.
20 It is apparent from the evidence in the case, as I recall it and is further deposed by Mr Newton, that the land in question had been leased for almost all of the period since the defendant purchased it in 1986 until the last tenant vacated it between July 1997 and January 1998. The defendant did not have copies of any of those leases other than the most recent one and it was necessary for Mr Newton to obtain copies of them from the tenants or their solicitors. Other inquiries were also necessary.
21 The original tenant, Mr Buckland, or one of his entities, was problematical, according to Mr Newton, in that Mr Buckland professed to be unable to remember anything about the relevant events. That necessitated further investigation from documents held by third parties. I do not propose to set out in any further detail what is referred to in Mr Newton's affidavit in that regard. Suffice to say there were numerous tenants and a considerable body of documentation. Much of this did in the end appear in the course of the proceedings.
22 One specific item of preparation mentioned by Mr Newton is the conduct of various company and business name searches in respect of the various tenants. He states that ASIC searches from before 1990 are contained on microfiche, which is time-consuming to review, and his recollection and estimation is that he spent approximately 27 hours conducting such searches and a further 10 hours approximately searching titles, diagrams, plans and other Department of Land Administration searches.
23 Finally, Mr Newton observes that the maximum amount under item 13 of the scale is $31,300, which is based on 100 hours of a senior practitioner's time and, based on his time sheets, he indicates he has spent in excess of 700 hours on this matter before the commencement of the trial. Although some of that time falls within other specific items of the scale, the majority relates to the time spent getting the case up for trial.
24 The plaintiff respondent has filed and relies upon an affidavit of Douglas James Gordon sworn on 6 January 2004. That is a brief affidavit to which are annexed invoices from his solicitors for the cost of the entire proceedings. He deposes that the total of those invoices prior to trial is $56,535.63. The only expenses he incurred for inspection of documents at the City of Perth were for inspections on 26 September and 18 October, the cost being for one hour and 12 minutes of time spent by his solicitors for those expenses.
25 So far as Department of Land Administration searches were concerned the only expenses incurred for searching those were for online searches and the total cost of those was $325.70.
26 The way in which the plaintiff relies upon that affidavit, in substance, is to assert that as the entire time spent and costs incurred by the plaintiff's solicitors prior to trial were an amount of somewhat under $57,000, the claim by the defendant's solicitors referring to 700 hours is, on the face of it, not reasonable and not necessary.
27 As to the first basis of the defendant's claim - namely, the unusual complexity of the case - the submission essentially is that the case was of unusual complexity because the relevant area of the law relating to prescriptive easements is relatively obscure and contains a number of subtleties. It is submitted that a review of the defence and counterclaim and the defendant's outline of submissions for trial reveal that the defendant's case raised a number of complex factual and legal issues, all of which the defendant was justified in raising.
28 It is further submitted that the case was also complicated and the defendant was put to substantial further costs because the case concerned the claimed use of the defendant's land by the plaintiff's predecessors in title and then the plaintiff for a period in excess of 22 years from 1979; that the defendant did not become the registered proprietor of its land until 4 February 1986 and thus was not the registered proprietor at the time of the development of the plaintiff's land; that Mr Buckland, the principal of the registered proprietor of the defendant's land until February 1986, had no recollection of any relevant matters and that the defendant had culled documents that were over seven or eight years old and so had virtually no documents relating to the land in question from prior to 1994 or thereabouts.
29 In my view, the words "unusual complexity" signify that the allowances in the Determination are fixed in the expectation that cases to which they apply may be cases of complexity. In other words, for a case to be complex, whether as to fact or law, will not, of itself, justify a departure from the scale unless the degree or nature of the complexity is unusual in a respect which would be seen as reasonably justifying such departure.
30 There is of course also a degree of overlap between the first and the second bases upon which the present application is put. It is submitted that by reason of the matters going to complexity, the solicitors for the defendant were thereby required to undertake far more extensive searches, inquiries and other work beyond that which would ordinarily be contemplated by item 13 of the scale.
31 The plaintiff submits in relation to this that the application really must be looked at as justifying only 98 hours of work which could be characterised as falling within the category of "getting up for trial". Dr Edelman says that is a complete answer to this application, in effect, because it does not justify a general raising of the limit. Alternatively his submission is that if the work was prima facie significantly greater than that ordinarily contemplated for the purposes of item 13, then on the face of it it has not been shown to be reasonable. Finally his submission is that even if that were so, then, if an order were to be made, it should be an order which imposes a specific limit.
32 As to the plaintiff's submission that the affidavit of Mr Newton explains and quantifies only 98 hours of work done, that may be strictly true, but the time sheets certainly show far more than that and I do not read the content of his affidavit as being so limited. What is important for present purposes, it seems to me, is that the affidavit does demonstrate that far more than 100 hours' work has been prima facie necessarily and reasonably done; that being significantly greater than the amount of 100 hours upon which the schedule item is set .
33 There is, in my view, considerable force in the plaintiff's submission that the evidentiary material in Mr Newton's affidavit going to the searches ought to be considered against the prospect that a number of the matters raised could have been the subject of a request for particulars or a notice to admit facts. Whether or not however the particular searches can ultimately be justified seems to me to be a matter which would be more appropriately dealt with by the closer scrutiny which could be given by a taxing officer than is possible (or appropriate) by me on an application of this kind.
34 I am persuaded by counsel for the plaintiff to the view that the present case was not, in terms of law certainly, unusually complex. It may be that claims for prescriptive rights do not arise very often, but they do arise and, ex hypothesi, they will involve issues - that is to say, legal issues - of some unusual nature and some degree of subtlety but, as I have already indicated, the fact that a legal issue may be complex is not, of itself, sufficient to justify a departure from the ordinary costs limit in the terms of O 66 r 12.
35 However in my view, the evidentiary and factual issues in this case, as demonstrated in the conduct of the trial and as appear from Mr Newton's affidavit, lead me to conclude that the amount of work prima facie reasonably required to be done in getting the case up for trial was so appreciably more than the 100 hours - on which the amount of $31,300 in item 13 was calculated - as to constitute good and sufficient reason to make a special costs order. (See Schmidt v Gilmore, supra).
36 I consider the making of such an order is justified on that basis. I have given consideration to the question of whether I should order that the total of the enlarged costs for item 13 should not exceed a particular figure. Where I am minded to do so I would require the defendant to bring in a draft minute so that the order could be tailored to the circumstances of this case (McLean v Kerville, unreported; SCt of WA (Burt CJ); Library No 6455; 1 October 1986 at 2).
37 On reflection however, I consider it sufficient to rely upon the discretion of the taxing officer to determine whether what is claimed should be allowed as being reasonable charges for work necessarily or reasonably done. The application will be granted. I will make a special order pursuant to O 66 r 12 that the cost limit in respect of item 13 of the Determination, "Getting up For Trial", be removed.
Wayella Nominees Pty Ltd as Trustee for the D J Gordon Family Trust
Cowden Ltd [2003] WASC 210
(1994) 11 WAR 505
(1993) 9 WAR 56
(1992) 8 WAR 400
(1992) 6 WAR 366