Wilson v Forrester-Babcock [2000] NSWSC 1208 | Case summary

1 HIS HONOUR: This is an application under s 88K of the Conveyancing Act 1919 for the Court to grant an easement for a short period to enable scaffolding to be erected. 2 The properties concerned are numbers 127 and 129 Seaforth Crescent, Seaforth. The plaintiffs are the registered proprietors of Lot 1 in DP 850322, the street address of which is 129 Seaforth Crescent. The defendant is the registered proprietor of Lot 2 in that deposited plan, the street address being 127 Seaforth Crescent. The properties are in same street, only slightly removed from the property in Hanny v Lewis (1998) 9 BPR 16,205. 3 The topography is that the land falls sharply away from the street to Middle Harbour. The plaintiffs' property is basically at the top of the rise adjacent to the street. The defendant's property is down on the harbour level and is serviced by an inclinator which passes along the handle of the battleaxe block. 4 The plaintiffs wish to put cladding on their building and, in order to do so, need to erect scaffolding which will intrude about 0.85 metres on to the handle of the defendant's battleaxe block for a length of about 24 metres. The only interference that may be caused by such scaffolding would be possible obstruction of the carriage on the inclinator or people walking down the handle of the battleaxe, should that be possible. I am not told whether there are steps, etc, down there or not, but I assume there are. The plan shows that there would be a gap of 0.15 metres between the edge of the cage on the inclinator and the scaffolding, which would suggest that there would be no interference and I assume that the inclinator carriage, as is commonly the case, is enclosed, so that it would not be a case of wide loads being affected. 5 Accordingly, just looking at the practicalities of it all, there would not appear to be any substantial interference with the defendant's property at all by granting the easement. 6 However, Ms Ottesen, for the defendant, very strenuously resists the granting of the easement. She indicates that her client is very unhappy that the plaintiffs have, without any prior indication to her, drawn their plans in such a way that they need access to her property and her view is that if such courtesy was not paid to her why should she oblige the plaintiffs by granting them this access. Accordingly, when the plaintiffs belatedly asked for permission they were given a very firm "No". Moreover, the builder was warned that he must not encroach on the defendant's property and that if there was any trespass the defendant would seek an injunction. 7 The purpose of s 88K of the Conveyancing Act is principally to deal with the present sort of case, that is where there are closely settled buildings and it is not reasonably practicable to do building work without a licence to enter adjoining property. There were, prior to the enactment of s 88K, a few cases where neighbours would hold builders to ransom, and other cases where builders would just trespass onto a neighbouring property and, if sued belatedly pay a licence fee. The enactment of s 88K was to deal with the problem of closely settled buildings as well as other properties generally because the section also applies to country properties; see for instance Grattan v Simpson (1998) 9 BPR 16,649. 8 Ms Ottesen objects on the ground that the present properties are not closely settled. However, when one looks at the plan which is attached to the summons, one can see that number 129 is in fact a very narrow block, indeed being at its widest 13.075 metres, which is smaller than a suburban block in what in the 1950s would be called a slum area. When one considers that this is a fairly high economic area of Seaforth with harbour views, it is, to my mind, the closely settled type of area that requires remedial action under s 88K. 9 As many of the authorities have said, there are four matters which a plaintiff has to prove in order to get relief under s 88K:

(4) that all reasonable attempts have been made by the plaintiff to obtain an easement and these have been unsuccessful. 10 Ms Ottesen puts in issue all except (2). 11 As Ms Ottesen has said on more than one occasion, the onus is on the plaintiff to satisfy the Court that the three matters in dispute have been satisfied. 12 The first requirement seems to me to have been satisfied by the evidence in this case that if one is to build a new house on lot 1, or number 129, one probably does need to make use of most of the block. Ms Ottesen says it could be that the southern wall could be further in from the boundary of the property and she points to the fact that in some other cases there has been evidence of this nature. However one must look at each case on its own facts. 13 Although there is no evidentiary burden on the defendant, the facts shown by the plaintiffs at least make out a prima facie case that it is a reasonable and effective use and development of the land to do what the plaintiffs want to do. Had there been other considerations dealing with the topography of the land and the use of the buildings, that prima facie situation may have been displaced, although it is hard to see when the only real effect is on the access to the defendant's land. 14 As to the third requirement, the evidence is that a valuer has opined that for a slightly smaller easement, which would encroach 0.7 metres and be 16 metres long, $500 per week would be adequate compensation. In the absence of any other evidence it must be the fact that if one can adequately compensate for such an easement, one can also adequately compensate for one that is slightly longer or even half as long again. 15 The next question is whether the plaintiffs have made reasonable attempts to obtain the easement. There is no doubt that the plaintiffs should have commenced attempts to obtain an easement earlier. However, there is also no doubt on the evidence that when the plaintiffs did make attempts to get an easement they were met with a firm "No". The authorities such as Coles Myer NSW Ltd v Dymocks Book Arcade Ltd (1996) 7 BPR 14,638 and Goodwin v Yee Holdings Pty Ltd (1997) 8 BPR 15,795 show that once a situation has been reached where a defendant has clearly signalled that no offers will be accepted, there is no obligation on the plaintiff to pursue negotiations any further. 16 This present sort of application is one which is firmly within section 88K. The preconditions have been made out, there does not appear to be any real prejudice to the defendant, nor has she proffered evidence of any and, accordingly, orders should be made in terms of paras 1 and 2 of the summons. 17 I then turn to the question of costs. Under s 88K(5) the costs of the proceedings are payable by the applicant, subject to any order of the Court to the contrary. In the instant case, the opposition to what would, on the face of it, appear to be the plainest of cases was vigorous and negative. It was negative in the sense of repeated submissions that the plaintiffs had not discharged the onus of proof on them and that the plaintiffs had not produced the appropriate amount of evidence. Very few cases in this Division are decided on onus of proof. The Court usually looks to the merits. In these temporary scaffolding cases where there is nothing put as to the merits, but the defendant merely relies on her proprietary rights, the defendant runs great danger in having to pay at least some of the costs of the suit. 18 Accordingly, I must consider whether in this case that should apply. 19 The reason why it might not apply in this case is because of the late forecast to the defendant of the requirement of an easement, then the expansion of the requirement, and the fact that the defendant is residing in California and her local attorney, a real estate agent, may not have felt that he could do anything except say "No" or go to a lot of expense in explaining things to the defendant. 20 There is also the factor which Ms Ottesen kept stressing, that being the registered proprietor of property is a basic right and it is one that should not be interfered with, save in special circumstances. 21 In any event, it would seem to me that the plaintiffs would need to pay the basic costs of the suit. By that I mean what used to be covered by the old "two guinea rule", that is, the costs of the defendant's solicitors looking at the documents and advising the defendant as to what she should do. 22 The real question is whether counsel's fees should be allowed because, with great respect, the case that was argued was not one that was likely to appeal in the way it was argued. 23 However, in view of the provisions of sub-section 88K(5) which seem to suggest the normal rule, I do not think this case is sufficiently outside the pale to make some other order for costs. Therefore, I order that the plaintiffs pay the costs of the defendant. 24 I make orders 1 and 2 in the summons deleting the words "from the granting of that easement" at the end of order 1 and substituting the words "the lodgement for registration of the appropriate transfer". Add order 3: Liberty to apply. Add order 4: Order that the plaintiffs pay the defendant's costs of the proceedings.

Wilson v Forrester-Babcock

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Judgment (10 paragraphs)

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