Jeffery v Adams [2023] NSWSC 1270
Case Overview
Our clients, Mr and Mrs Jeffery (Plaintiffs) sought relief to access (around a dam) on a right of carriageway (RoC) that benefitted the Plaintiffs land (Lot 34 in the image below) which was a steep and largely inaccessible portion of land near Coffs Harbour. The RoC burdened two parcels of land owned by the Defendants, three of whom owned one parcel of land (Lot 133 in the image below) and one of whom owned an adjoining parcel of land (Lot 132 in the image below).
Access to the RoC was prevented by the construction of a dam on Lot 133 in around 1998. For the next 15 years, the Plaintiffs used an alternative access track (Access Track) around the dam to access the top of Lot 34 (the Top Paddock). However, neighbourly relations deteriorated and in 2020 the Defendants fenced off part of the Access Track and subsequently erected a locked gate across the remainder of the Access Track being used by the Plaintiffs.
Without being able to use the Access Track and use the RoC, the Plaintiffs were unable to access the Top Paddock by vehicle, and were limited to accessing the Top Paddock by foot via a very steep and narrow access handle. This prevented the Plaintiffs from reasonably using the Top Paddock as part of their small farm operation.
Hones Lawyers commenced proceedings in the Supreme Court of New South Wales pursuant to s 88K of the Conveyancing Act 1919 (Act) on behalf of the Plaintiff seeking relief in the form of, amongst other orders, an order that a right of carriageway be imposed around the dam to access the RoC and the top paddock (New RoC).
In making orders imposing the New RoC over the Defendants’ Land, Peden J held that:
- the New RoC was reasonably necessary for the use of the Top Paddock;
- the need for the New RoC arose because the RoC had been rendered inutile by the construction of the dam by the Defendants;
- the Access Track was the most direct alternative route to the Top Paddock;
- the Access Track was already used by the Defendants and utility service providers who benefitted from an easement for services; and
- no other alternative access routes existed to the Top Paddock save for draining and demolishing the dam, which was held to be prohibitively expensive.
Most importantly, due to the highly obstructive and wholly unreasonable approach taken by the Defendants in the proceedings, Peden J held that it was appropriate for the standard costs presumption in s 88K(5) of the Act to be displaced and for the Defendants to pay the Plaintiffs’ costs of the proceedings. Her Honour’s reasoning for making those orders were that:
- There was no rational or legal basis for the Defendants to prevent the Plaintiffs from using the Access Track, which they had been doing for decades;
- The Defendants’ resistance to the New RoC went beyond putting the Plaintiffs to reasonable proof, and prolonged the hearing;
- Expert evidence was adduced by the Defendants (as it turns out, unnecessarily so) which put the Plaintiffs under an additional financial burden; and
- Many of the Defendants’ submissions were considered baseless and a cross-claim they brought against the Plaintiffs failed in its entirety.
Two separate attempts brought by one of the Defendants to appeal Peden J’s decision were dismissed by the NSW Court of Appeal.
Customer Testimonials
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Over the past four years, my wife and I have experienced the burden of an easement that was placed over our property by the previous owner of an adjacent property. The current neighbour holding the dominant tenement rights considered that he had exclusive use of the section of our property covered by the easement. He seemed to have little or no social conscious, and caused us much unnecessary distress by his intrusion, and practice of "storing" his unwanted possessions in our place. Something had to be done about it particularly as I was fearful of leaving my wife at the mercy of his bullying and intimidating behaviour should I pre-decease her, given our age difference. I asked a barrister friend if she could recommend a solicitor(s) who specialise in easements. I was given a list of solicitors at the top of which was Hones Lawyers. I decided to seek the help of Jason Hones and his team, and it has turned out to be one of the best decisions I have ever made in my 87 years lifetime. Jason, together with his associate Peter Clarke handled our matter for the best part of two years during which they were at all times respectful to us, and attended in a most competent and professional way to every one of our concerns and steps along the way. Hones Lawyers represented us in communications with our neighbours' solicitors, and did everything in their power to achieve a mutually agreeable outcome. Their efforts were continually hampered by obfuscation from the other side until it finally became obvious that our only course of action was to take the matter to court. Under the expert guidance of Jason and Peter, our matter was heard in the Supreme Court of NSW and we are extremely grateful to have been successful in achieving judgement in our favour, and the purported easement has been declared invalid. As mentioned earlier, we are impressed with the respect we received at all times from Hones Lawyers, as well as their conscious effort to communicate with us without confusing us with "legal speak". Their selection of senior and junior counsel was spot on and achieved an excellent legal team to represent our interests. Jason personally came with us to make the introduction to counsel and sat with us through the preparation negotiations. Throughout the whole process Peter Clarke proved to be a very intelligent and extremely competent young man, a valuable representative for his organisation, and was always polite and available for our every requirement. In conclusion, we have absolutely no hesitation in recommending Hones Lawyers to anyone who wants competent legal representation carried out properly and efficiently. Max (and Janet) Petrie Max Petrie13 August 2024 Peter has recently represented me in a matter & I have found him to be incredibly knowledgeable, extremely articulate and very responsive. He also has an impressive network of professionals around him and he has a “get it done” attitude. I would have no hesitation in recommending him and Hones & I would definitely retain his services again. Matt McEwan30 May 2024 I have been working with Jane Mercer over the past few weeks finalising everything for settlement on my new place. Jane has been one of the most helpful and plesant people I have dealt with throughout my property purchasing journey. She is friendly, responsive, helpful, took a lot of time to explain things to me I was not clear on and got my settlement done in 15 days! I would highly recommend using Hones Lawyers and especially Jane who was an absolute pleasure to work with. Would happily engage with Jane any time I need help. Thank you Jane! miranda rutherford20 May 2024 I highly recommend this law firm. I recently engaged them to handle the conveyancing of my house and was very impressed with their knowledge and attention to detail. Wilana23 November 2021 Hones Lawyers, This company team can be trust, understand well your thought, professional battle a case on your behalf, and respond your question quickly. Special "Gavin" is my favorite, he is well organized, polite and so gentlemen guide us step by step for your worry since start to finish. Thanks for your help our case Gavin for finalized easement matter with plaintiff in mid this year 2020, and you and your team done great job. Minh Le30 June 2020