Wayella Nominees Pty Ltd as Trustee for the D J Gordon Family Trust v Cowden Ltd [2003] WASC 210

Wayella Nominees Pty Ltd as Trustee for the D J Gordon Family Trust v Cowden Ltd [2003] WASC 210 - WASC 2003 case summary — Zoe

[220]

"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."

[305]

"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:"

[350]

"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."

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Judgment (375 paragraphs)

Wayella Nominees Pty Ltd as Trustee for the D J Gordon Family Trust v Cowden Ltd [2003] WASC 210 (4 November 2003)

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Cases Cited (4)