Au v Berlach

[2021] NSWSC 806

Supreme Court

New South Wales

Medium Neutral Citation:

Au v Berlach [2021] NSWSC 806

Hearing dates:

1 July 2021

Date of orders:

1 July 2021

Decision date:

01 July 2021

Jurisdiction:

Equity - Duty List

Before:

Kunc J

Decision:

Undertakings proffered by defendants; notice of motion for interlocutory relief dismissed; proceedings referred to Expedition List Judge

Catchwords:

LAND LAW — Easements — Use of easements — Excessive and unreasonable use — Long running and bitter dispute between neighbours about scope of entitlement to maintain right of way including by use of leaf blower

Legislation Cited:

Civil Procedure Act 2005 (NSW)

Category:

Procedural rulings

Parties:

Gregory Au (Plaintiff)
David Berlach (First Defendant)
Emily Berlach (Second Defendant)

Representation:

Counsel:

S Brennan (Plaintiff)
D Hand (Defendants)

Solicitors:

Williams Ryman Wong Solicitors & Notary (Plaintiff)
ClarkeKann Lawyers (Defendants)

File Number(s):

2021/168680

Publication restriction:

Nil

EX TEMPORE Judgment (REVISED)

1. The plaintiff and the defendants are neighbours. The defendants have the benefit of a right of way over the land of the plaintiff, which right of way is expressed to be "a right of way or use or passage at all times and for all purposes to the benefit of the proprietor for the time being of Lot XX, his heirs, executors, administrators and assigns and their servants, aids (sic) and workmen with or without vehicles or animals" (the Right of Way).

2. Regrettably, a long-running dispute has brought this matter to this Court. The parties are unable to agree on how the defendants are entitled to use and maintain the Right of Way in accordance with their rights at law. I do not propose in these very short reasons to go into the precise matters about which they are in dispute, but it includes things such as the use of leaf blowers and the taking of other steps on behalf of the defendants to, they say, maintain and enjoy the rights which they have to use the Right of Way. The dispute between the parties has already taken up the time of other courts in other applications that have been made concerning the defendants’ use of the Right of Way.

3. In the Duty List before me today I had a motion for interlocutory injunctions brought by the plaintiff against the defendants. A substantial amount of evidence has been filed. For the practical purposes of the management of a busy Duty List and given the nature of the dispute, without wishing to diminish its importance to the parties, I have dealt with the matter in a peremptory fashion. It seems to me that, in accordance with s 56 of the Civil Procedure Act2005 (NSW), these parties ought to have one chance and one chance only to persuade the Court of their respective positions. That should be done in a final hearing.

4. The defendants have proffered undertakings in terms which will appear at the end of these reasons. In the light of those undertakings, I do not propose to express any views about whether or not there is a serious question to be tried. However, even if there were a serious question to be tried, I would not grant the injunctions sought in the notice of motion, having regard to the balance of convenience taking into account the undertakings.

5. The appropriate course is for the undertakings that have been given to hold the position between the parties until the proceedings can be determined on a final basis. For that purpose I have indicated that I will refer the proceedings to the Expedition List Judge.

6. In the meantime, I encourage the parties to consider what further evidence they wish to file so that they will be in a position to inform the Expedition List Judge as to what steps have to be taken to prepare the matter for an early final hearing.

7. The orders of the Court are:

1. Dismiss the notice of motion filed 11 June 2021.

2. Order the parties’ costs of that motion be costs in the cause.

3. The proceedings are stood over to before the Expedition List Judge on 9 July 2021.

4. Note the undertaking of the defendants by their Counsel to the Court, without admissions and until further order, not to, and to use reasonable endeavours to ensure that their children, contractors, servants and agents do not, enter XXX Road Matcham for any purpose other than to go, pass and repass at all times over the right of way fourthly referred to in DPXXXX (“Right of Way”) including not:

1. to perform maintenance other than:

1. by a third party contractor;

2. not more than twice per week;

3. not more than for one hour on each occasion; and

4. confined only to the removal of leaves, organic debris, moss and branches on the Right of Way;

2. having the defendants’ children ride bicycles up and down for lengthy periods without proceeding to the public road at the end of the Right of Way; or

3. attempting to run down bush turkeys on the Right of Way.

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Decision last updated: 02 July 2021