LANG AND ANOR v KIRKNESS AND ANOR [1995] NSWCA 254

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

CLARKE, MEAGHER and POWELL JJA

31 March 1995, 16 June 1995

[1995] NSWCA 254

NO APPEAL FROM JUDGMENT — NO QUESTION OF PRINCIPLE

FACTS

Mr and Mrs Kirkness, the respondents, have the benefit of a right of carriageway over the neighbouring land owned by Mr and Mrs Lang, the appellants. Part of this right of way was on an embankment across a water course. In 1989, heavy storms damaged the embankment. Mr and Mrs Kirkness set about to repair the damage. Unfortunately, this was not done to Mr and Mrs Lang's liking. The scene was thus set for a long and mutually self-destructive history of litigation.

Held (per Meagher JA and Powell JA; Clarke JA concurring)

The present appeal is an appeal from the orders of Windeyer J which merely enforced his judgment. The judgment itself is not on appeal.

Accordingly, the appeal must be dismissed with costs.

ORDERS

The appeal is dismissed with costs.

Clarke JA During the hearing of this appeal the Court was informed by the parties that the Court should clear up the whole matter. Indeed they said that that was why leave had been granted.

The simple fact, however, is that leave to appeal was granted only in respect of the judgments referred to in Meagher JA's judgment and the Court is restricted to a consideration only of those judgments. Notwithstanding, the Court spent a considerable time discussing the matter with the parties in the hope of their agreeing to a resolution of this bitter and protracted litigation, even seeking to refer the whole dispute to mediation. All our attempts were unavailing - the parties stood their ground and no consent to a mediation was forthcoming. Nothing more could be done to bring the litigation to an end and the Court is required to rule on the narrow dispute the subject of the present appeal.