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Easement, trespass, neighbour dispute, District Court. Shire Legal, Miranda, Sutherland Shire

Dispute over Property Access and Trespass: Hill v Wirepa - A Case Study

conveyancing act easements property property law tresspass Oct 02, 2024

Property disputes between neighbouring landowners can often lead to complex legal battles. Such is the case with Hill v Wirepa, a dispute over access to rural land in Hastings Shire, west of Port Macquarie, New South Wales. This case revolves around allegations of trespass and misuse of property rights, culminating in a court judgment that provides important insights into property law and the enforcement of rights against trespassers.

Factual Background

The cross-claimants, Christopher and David Hill, inherited a rural property known as "the Property" from their father, Graham Hill, after his passing in 2022. The property is comprised of several lots and is used by the Hills for cattle farming. Their adjoining neighbour, Ms. Silvana Wirepa, owns Lot 170 in DP754412 ("Lot 170"), which lacks direct access to a public road. As a result, she must cross the Hills’ property to access the public road.

Historically, the Hills did not object to Ms. Wirepa crossing their property for this limited purpose. However, they took issue with her alleged repeated trespasses and misuse of the property for purposes beyond mere access, including allowing her dogs to roam freely on their land, storing goods, and conducting business activities. This behavior culminated in the Hills seeking legal relief in the form of declarations and an injunction to restrain further trespasses and nuisance by Ms. Wirepa.

The Legal Proceedings

The initial proceedings were brought by Ms. Wirepa in the Supreme Court, where she sought the imposition of an easement under Section 88K of the Conveyancing Act 1919 (NSW). However, after repeated non-compliance with court orders, her claim was dismissed in 2023. The Hills, in turn, filed a cross-claim in the Supreme Court seeking declarations and permanent injunctive orders to prevent further trespass by Ms. Wirepa.

After the dismissal of Ms. Wirepa’s claim, the Hills’ cross-claim was transferred to the District Court, where they pursued an interlocutory injunction, successfully restraining Ms. Wirepa from further trespasses in May 2024.

Issues Before the Court

The key issues before the Court were:

  1. Whether Ms. Wirepa had committed acts of trespass on the Hills' property.
  2. Whether the Hills were entitled to permanent injunctive relief to prevent further trespasses.
  3. Whether declaratory relief should be granted concerning past trespasses.
  4. Whether the Hills were entitled to special costs due to a rejected settlement offer made via a Calderbank letter.

Court's Analysis

  1. Trespass The Hills argued that Ms. Wirepa had exceeded the permissible scope of access to their property by using it for purposes beyond mere passage to Lot 170. The evidence presented included affidavits, title searches, CCTV footage, and email correspondence. The court found that Ms. Wirepa had engaged in repeated instances of trespass, including driving vehicles onto the property, allowing her dogs to roam freely, storing goods on the land, and even inviting third parties onto the property to use the river.

    Trespass is established when a person intentionally or negligently enters or remains on another's property without lawful authority. In this case, the court found that Ms. Wirepa had exceeded the limited permission granted by the Hills, which was confined to crossing the property for access to and from the public road. Her conduct, including running a business on the Hills' property and allowing others to enter it, constituted clear trespass.

  2. Injunctive Relief The court considered whether the Hills were entitled to permanent injunctive relief to prevent future trespasses by Ms. Wirepa. Given the repeated nature of the trespasses, the court concluded that there was a high likelihood that such conduct would continue unless restrained. Injunctive relief is discretionary, but where trespass is ongoing or likely to be repeated, such relief is generally appropriate. The court was satisfied that injunctive orders were necessary to protect the Hills’ property rights.

  3. Declaratory Relief While the Hills also sought declaratory relief to acknowledge past trespasses, the court declined to grant this form of relief. Declarations are typically granted when they serve a practical purpose, and in this case, the court found that declarations concerning past trespasses would not have any practical utility beyond the injunctive relief already being sought.

  4. Special Costs and Calderbank Offer A significant part of the case involved a Calderbank offer made by the Hills to settle the matter before it proceeded to a final hearing. A Calderbank offer is a settlement offer made in an attempt to resolve a dispute, with the offeror reserving the right to seek indemnity costs if the offer is rejected and the offeror subsequently succeeds in court.

    The Hills’ offer proposed that both parties bear their own costs, even though the Hills had incurred substantial legal expenses. The offer was reasonable given the strength of the evidence against Ms. Wirepa, yet she failed to respond. The court found that this failure was unreasonable, particularly as the Hills ultimately obtained relief similar to what they had proposed in their settlement offer. As a result, the court awarded indemnity costs against Ms. Wirepa from the date of the Calderbank offer.

Court's Findings

The court ultimately ruled in favor of the Hills. It found that Ms. Wirepa had committed multiple acts of trespass and granted permanent injunctive relief to restrain her from entering or using the Hills' property, except for the limited purpose of accessing Lot 170 from the public road. The court also awarded indemnity costs in favor of the Hills from the date of the rejected Calderbank offer.

Conclusion

The case of Hill v Wirepa serves as a reminder of the importance of respecting property boundaries and the potential legal consequences of overstepping them. It also highlights the significance of responding to reasonable settlement offers in litigation, as failure to do so can lead to adverse cost orders. Landowners should be mindful of their rights and obligations concerning neighbouring properties, particularly when it comes to issues of access and trespass.

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