Jeffery v Adams [2023] NSWSC 1270

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:

1. the New RoC was reasonably necessary for the use of the Top Paddock;
2. the need for the New RoC arose because the RoC had been rendered inutile by the construction of the dam by the Defendants;
3. the Access Track was the most direct alternative route to the Top Paddock;
4. the Access Track was already used by the Defendants and utility service providers who benefitted from an easement for services; and
5. 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:

1. 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;
2. The Defendants’ resistance to the New RoC went beyond putting the Plaintiffs to reasonable proof, and prolonged the hearing;
3. Expert evidence was adduced by the Defendants (as it turns out, unnecessarily so) which put the Plaintiffs under an additional financial burden; and
4. 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.