Banks v Morgan & Ors

Parties

Procedural Posture

Civil Appeal / Appeal From County Court (chancery Business) to Court of Appeal

Legal Issues

1. 1 Whether the plan annexed to the particulars of claim or a substituted plan determines the physical extent of the right of way
2. 2 Whether any of the plans used in previous proceedings bind the parties as to the physical extent of the right of way
3. 3 Whether the lower court erred in its declaration regarding the extent of the right of way

Ratio Decidendi

The physical extent of the right of way was not determined in the 2004 trial or by any subsequent order; neither the original nor substituted plans are sufficiently clear or binding to define the right of way's width. The lower court erred in declaring the original plan as determinative. No order should be made on the application, and directions should be given for a merits hearing to finally resolve the issue.

Court Disposition

Appeal allowed

Orders

• No order on the relief sought in the application below
• Directions for a merits hearing to determine the physical extent of the right of way, including appointment of a single joint expert and sequential pleadings by the parties