Duncan v Cliftonville Estates Pty Ltd [2001] NSWSC 968

Reported Decision : (2002) NSW ConvR 56-006

New South Wales Supreme Court

CITATION : Duncan v Cliftonville Estates Pty Ltd [2001] NSWSC 968 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 1840/01 HEARING DATE(S) : 17/10/01 JUDGMENT DATE : 17 October 2001

PARTIES : Suzanne Elizabeth Duncan and Judith Valkenburg (P) Cliftonville Estates Pty Ltd (D) JUDGMENT OF : Young CJ in Eq

COUNSEL : C R C Newlinds (P) B A Coles QC (D) SOLICITORS : Bull Son & Schmidt (P) Kemp Strang (D) CATCHWORDS : REAL PROPERTY [409]- Easements- Whether easement can be granted to exist for limited but indefinable time. Collins v Slade (1874) 23 WR 199 Cotting v Boston 87 NE 205 (1905) (Mass) Craney v Bugg [1971] 1 NSWLR 13 CASES CITED : Greene v West Cheshire Railway Co (1871) LR 13 Eq 44 Hollins v Verney (1884) 13 QBD 304 Megalconomos v Metro-Goldwyn-Mayer Pty Ltd (1953) 54 SR (NSW) 275 Wight v Haberdan Pty Ltd [1984] 2 NSWLR 280 DECISION : Orders made.

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

1840 of 2001 YOUNG CJ in EQ

Wednesday 17 October 2001 DUNCAN & ANOR v CLIFTONVILLE ESTATES PTY LTD

Judgment 1 His Honour: This is a strange suit which has come into the short notice list and has probably suffered because of inadequate preparation before the time when the two counsel who appeared before me took over the suit. They have done the very best they could have done on the material available but, because of inadequate preparation earlier, some evidentiary material which one would have thought would have been before the Court was not before the Court 2 Whilst dealing with this preliminary matter I should make the point that when the Court makes directions for the filing of affidavits before a certain time, it means what it says, even in consent orders. Ordinarily, if material is not provided within the time limited by order, the Court just does not consider it. There are occasions when the material can be received by consent, or where it would be appropriate to grant an adjournment with orders as to indemnity costs for the defaulter, but in many cases the rights and interests of the parties are only able to be dealt with by dealing with the matter at the trial in the light of the evidence which has been filed in accordance with the directions. 3 There is one submission that was made by senior counsel for the defendant about these procedural matters which, with respect, I cannot accept. That is that if a direction is made that all affidavits by the defendant are to be filed by a certain time, the defendant only needs to file the affidavits and does not need to annex or exhibit the documents on which it intends to rely. Unless some differentiation is made in the actual order, it would seem to me that an order for affidavits means an order for providing all the evidence, including the documents which have to be tendered at the trial. 4 Having relieved myself of those matters, let me turn to the present dispute. The parties are the proprietors of contiguous parcels of land at Darling Point. The actual title holdings are a little complex but, essentially, the plaintiffs are tenants in common of a property that may be called Lot 4. Adjoining is the defendant's land, Lot 3. The height of the plaintiffs' building has been regulated by covenants over it which have been in force for many years. 5 The defendant has recently built on its land and it was thought necessary to rearrange the covenants and the restrictions on the land. A right of way the plaintiffs had which connected their property to Thornton Street also entered into those considerations. For years, the plaintiffs have had vehicular access to Thornton Street via a right of way which involved a rather tight curve. When the restrictions were being renegotiated, they negotiated out an adjustment of the right of way which would ease that curve. That adjustment was of a twofold nature: