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Au v Berlach

Au v Berlach

Case [2022] NSWSC 81 8 February 2022

Easements & Covenants

Unjust Enrichment

Private nuisance

Interference with use and enjoyment of land

Substantial and unreasonable interference

Property Law

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Au v Berlach [2022] NSWSC 81
Hearing dates: 21, 22, 25 October; 15 December 2021
Decision date: 08 February 2022
Jurisdiction: Equity
Before: Kunc J
Decision:
Summons to be dismissed; Orders to be made to give effect to relief sought in cross-summons

Catchwords:
LAND LAW — Easements — Substantial interference with easements — Servient owner not entitled to place signs, fencing and other objects including 17 CCTV cameras in vicinity of easement detracting from dominant tenement’s reasonable enjoyment of rights — Extent of dominant owner’s ancillary rights including repair and maintenance and use of leaf blower
TORTS — Private nuisance — Interference with use and enjoyment of land — Substantial and unreasonable interference — 17 CCTV cameras on servient property recording dominant owner’s use of easement

Legislation Cited:
Conveyancing Act 1919 (NSW)
Protection of the Environment Operations (Noise Control Regulation 2017 (NSW)
State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (NSW)

Cases Cited:
Bland v Levi [2000] NSWSC 161; [2000] 9 BPR 17,517
Donnellan v Cadeddu [2021] NSWSC 1600
Hare v van Brugge (2013) 84 NSWLR 41; [2013] NSWCA 74
Mantec Thoroughbreds Pty Ltd v Batur (2009) 25 VR 507; [2009] VSC 351
Raciti v Hughes (1995) 7 BPR 14,837
Raphael Glaser v Silvana Slaveva Smithwick [2018] NSWLEC 206
Sertari Pty Ltd v Nirimba Developments Pty Ltd [2007] NSWCA 324; (2008) NSW ConvR 56-196
Shahin v Raedel [2017] SADC 92
Treweeke v 36 Wolseley Road Pty Ltd (1973) 128 CLR 274; [1973] HCA 27
Westfield Management Limited v Perpetual Trustee
Company Limited (2007) 233 CLR 528; [2007] HCA 45

Texts Cited:
Adrian J Bradbrook and Susan V MacCallum, “Bradbrook and Neave’s Easements and Restrictive Covenants” 3rd Ed, (Lexis Nexis Butterworths Australia 2011)

Category: Principal judgment
Parties:
Gregory Ming Hoi Au (Plaintiff)
David Jonathon Berlach (First Defendant)
Emily Margaret Berlach (Second Defendant)
Representation:
Counsel:

S Brennan with S Young (Plaintiff)
T Lynch SC with D Hand (Defendants)

Solicitors:
Williams Ryman Wong (Plaintiff)
ClarkeKann (Defendants)

File Number(s): 2021/168680
Publication restriction: No

Judgment

Summary

Most Australians live in proximity to their neighbours. That proximity will require, from time to time, a degree of give and take, tolerance and common sense to ensure peaceful co-existence. When those qualities are absent, disputes between neighbours can quickly grow out of all proportion. This case is an unfortunate example of that phenomenon.
For most people, to live in a well-appointed home on a large block amid the semi-tropical vegetation of the Central Coast hinterland would be a formula for a tranquil and idyllic lifestyle. Unfortunately, that has not been the case for the plaintiff, Dr Au, and his wife Ms Szypica, and the defendants, Mr and Mrs Berlach (the Berlachs).
As will be apparent from the diagram attached to these reasons (the Diagram), the Au property is on Oak Road at Matcham. The Berlach property is at the rear of the Au property and would be…

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 Au v Berlach

Details

AGLC: Au v Berlach [2022] NSWSC 81
Case: [2022] NSWSC 81
Decision Date: 08 February 2022

CaseChat Overview and Summary

Au and Berlach were involved in a dispute before the Supreme Court of Victoria concerning the use and enjoyment of easements and potential tortious interference with the use and enjoyment of land. The primary issue was whether Berlach, the servient owner, had overstepped the bounds of what was permissible by placing numerous objects, including 17 CCTV cameras, in the vicinity of an easement, thereby interfering with Au's, the dominant owner's, reasonable enjoyment of their rights. The court also needed to determine the extent of Au's ancillary rights, including the right to repair, maintain, and use a leaf blower on the easement.

The court examined the nature and extent of the easement, focusing on whether Berlach's actions constituted a substantial interference with Au's use and enjoyment of the easement. The court found that the placement of 17 CCTV cameras and other objects significantly detracted from Au's reasonable use of the easement. The court held that the servient owner cannot place objects in the vicinity of an easement if those objects substantially interfere with the dominant owner's rights. The court also clarified the scope of the dominant owner's ancillary rights, affirming that Au had the right to repair, maintain, and use a leaf blower on the easement, provided these activities did not unduly interfere with Berlach's rights.

In light of the findings, the court ordered Berlach to remove all objects, including the 17 CCTV cameras, from the vicinity of the easement. The court further directed Berlach to refrain from placing any further objects in the vicinity of the easement that could interfere with Au's reasonable use and enjoyment of the easement. Au was permitted to exercise their ancillary rights, including the use of a leaf blower, provided these actions did not unreasonably interfere with Berlach's rights.

Orders