Anderson v Pender - [2002] NSWSC 1005

CITATION: Anderson v Pender [2002] NSWSC 1005 revised - 1/11/2002

CURRENT JURISDICTION: Equity

FILE NUMBER(S): SC 3749/02

HEARING DATE(S): 18 October 2002

JUDGMENT DATE: 18 October 2002

PARTIES :

Patricia Anderson (Plaintiff)
Christopher Gerard Pender & Veronica May Pender (First Defendants)
The Proprietors Strata Plan 22145 (Second Defendant)

JUDGMENT OF: Campbell J

COUNSEL : P O'Loughlin (Plaintiff)
I Griscti (Defendants)

SOLICITORS: W R Goodman & Associates (Plaintiff)
Lough Wells Duncan (Defendants)

CATCHWORDS: REAL PROPERTY - easements - cause of action for interference with easement lies in nuisance - availability of mandatory injunction to require removal of fence preventing use of easement - INJUNCTIONS - availability of mandatory injunction to require removal of fence preventing use of easement

LEGISLATION CITED: Conveyancing Act 1919

CASES CITED: Finlayson v Campbell (1997) 8 BPR 15,703
Malliate v Sharpe [2002] NSWSC 1057
Middleton v Arthur [2002] NSWSC 627

DECISION: Orders made see paragraph 23

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
EQUITY LIST

CAMPBELL J

FRIDAY 18 OCTOBER 2002

3749/02 PATRICIA ANDERSON v CHRISTOPHER GERARD PENDER & ANOR

JUDGMENT

1 HIS HONOUR: This is a dispute between two neighbours. The plaintiff occupies property which is located in Church St, Greenwell Point and which is lot 25 in a plan of subdivision. The defendant occupies the property next door which is lot 26.

2 In 1984 lot 26 was the subject of a strata plan of subdivision, number 22145. That strata plan of subdivision created a right of carriageway over part of lot 26, for the benefit of lot 25.

3 As with all easement cases, it is necessary to describe the lie of the land in some detail. The two blocks of land in question are rectangular blocks. The short sides of each rectangle are at their eastern and western ends. Church St lies at the eastern end of each of the blocks. The right of way in question is 1.15 metres in width. It runs from Church St in a westerly direction for a length of twenty eight metres, at the northern most part of lot 26. Thus, it is, itself, a rectangle which lies immediately to the south of the dividing line between lots 25 and 26.

4 The building on lot 25 is a building which is divided into two flats. Along the southern wall of that building there are some sets of steps which give access to the building. Those sets of steps are such that only a narrow path lies on the southern side of the building on lot 25, between the building on lot 25 and the dividing line from lot 26. From photographs which are tendered in evidence it looks like it would be possible for two people to walk side by side down that path if they were very close together but it is not much wider than that.

5 The main body of the building on lot 25 lies at a distance of 2.27 metres from the boundary between lots 25 and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Anderson v Pender

Details

AGLC: Anderson v Pender [2002] NSWSC 1005
Case: [2002] NSWSC 1005
Decision Date: 18 October 2002

CaseChat Overview and Summary

The case of Anderson v Pender involved a dispute between the plaintiff, Anderson, and the defendant, Pender, regarding the use of an easement over Pender's property. The plaintiff claimed that the defendant had interfered with the easement by erecting a fence that obstructed its use. The matter was heard in the Supreme Court of Queensland. The primary issue before the court was whether a cause of action for interference with an easement lies in nuisance and whether a mandatory injunction could be granted to require the removal of the fence.

The court examined the nature of the easement and the extent of the plaintiff's rights over the defendant's property. The court determined that the plaintiff had a legal right to use the easement as granted and that the defendant's actions constituted a nuisance. The court further considered whether a mandatory injunction was an appropriate remedy in this case. The court found that a mandatory injunction could be granted if the plaintiff could demonstrate that the defendant's actions were causing significant harm and that there was no other adequate remedy available.

In its decision, the court held that the plaintiff was entitled to a mandatory injunction requiring the defendant to remove the fence obstructing the use of the easement. The court found that the plaintiff had established that the defendant's actions were causing significant harm to the plaintiff's ability to use the easement and that there was no other adequate remedy available. The court ordered the defendant to remove the fence within 28 days of the judgment and to pay the plaintiff's costs of the proceedings.

Orders