LANG v KIRKNESS [1994] NSWCA 180

LANG v KIRKNESS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, MEAGHER and POWELL JJA 26 July 1994, 16 August 1994

[1994] NSWCA 180

FACTS:

Access to land owned by Kirkness was only possible via a right of way through Lang's land which featured a causeway over a gulley. This was damaged during heavy rain, and Kirkness repaired it in a way which caused Lang to take exception. The dispute was settled by consent orders, but when the repair included an extension to the right of way exceeding the agreed 6m width, Lang jackhammered the offending portion. In proceedings which ensued, Brownie J held that the compromise embodied in the orders was repudiated by Lang's action and awarded damages to Kirkness. Lang appealed.

HELD

(1) On proper construction of the original orders it was Kirkness who contravened the agreement by exceeding the width of the easement.

ORDERS:

1. APPEAL upheld.

2. ORDERS below set aside.

3. In lieu thereof, order that the proceedings be dismissed with costs.

4. ORDER that the respondents pay the costs of the appellants in this appeal, the respondents to have a certificate under the Suitors Fund Act.

Clarke JA I agree with Meagher JA.

Meagher JA This is another episode in the apparently endless, and potentially bankrupting, litigation between the appellants, Mr and Mrs Lang, and their neighbours, Mr and Mrs Kirkness, the present respondents, over the use of an easement in Galston Road, Galston.

The Langs are the proprietors of certain land being Lot 2 in DP 567756, an area of about 5 acres, and known as 280 Galston Road. The Kirknesses own Lot 3 in the same DP. It is also 5 acres in area and lies to the east of Lot 2. Access to the Kirkness' land is relevantly gained by utilising a right of the carriage way across Lot 2. That is the only way of obtaining access to Lot 3.