Australian Unity Retirement Living Management Pty Ltd v Karimbla Properties (No. 10) Pty Limited

[2019] NSWSC 635

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Australian Unity Retirement Living Management Pty Ltd v Karimbla Properties (No. 10) Pty Limited [2019] NSWSC 635

Hearing dates:

2, 3, 4 & 5 July 2018

Date of orders:

31 May 2019

Decision date:

31 May 2019

Jurisdiction:

Common Law

Before:

Slattery J

Decision:

See paragraph [189]

Catchwords:

REAL PROPERTY – easements – land owned by the fourth plaintiff and land owned by first defendant share a common boundary - a shared driveway runs along the common boundary with each adjoining owner having an easement over the other’s land – vehicles and people accessing the first defendant’s land are claimed to be causing substantial interference with the easement benefiting the fourth plaintiff and excessive user of the easement benefiting the first defendant – whether substantial interference with the easement benefiting the fourth plaintiff and excessive user of the easement benefiting the first defendant has occurred – if so, what relief is appropriate.

Legislation Cited:

Local Government Act 1993

Cases Cited:

Animal Liberation (Vic) Inc v Gasser [1991] 1 VR 51
Black Uhlans Inc v New South Wales Crime Commission (2002) 12 BPR 22,421
Bulstrode v Lambert [1953] 1 WLR 1064
Burke v Frasers Lorne Pty Limited (2008) 14 BPR 26,111
Carlton and United Breweries (NSW) Pty Ltd v Bond Brewing New South Wales Ltd (1987) 76 ALR 633
Chillingworth v Chambers [1896] 1 Ch 685
Currumbin Investments Pty Ltd v Body Corp Mitchell Park CTS [2012] 2 Qd R 511
Dalgety Wine Estates Proprietary Limited v Rizzon (1979) 141 CLR 552
Forsyth v Blundell (1973) 129 CLR 477
Hanson v Keating (1844) 4 Hare 1
Hare v van Brugge (2013) 84 NSWLR 41
Hargrave v Goldman (1963) 110 CLR 40
Langman v Handover (1929) 43 CLR 334
Laris v Lin (No. 2) (2016) 18 BPR 35,917
Lindsay Petroleum Co v Hurd, Farewell & Kemp (1874) LR5PC 221
Lowe v Kladis (2018) 19 BPR 38,599
Nelson v Nelson (1995) 184 CLR 538
Phoenix Commercial Enterprises Pty Ltd v City of Canada Bay Council [2010] NSWCA 64
Proprietors of Strata Plan No. 9,968 & Anor v Proprietors Strata Plan No. 11,173 [1979] 2 NSWLR 605
Prospect County Council v Cross (1990) 21 NSWLR 601
Sader v Langham [2018] NSWSC 727
Sertari Pty Limited v Nirimba Developments Pty Ltd (2008) NSW ConvR 56-200
Sidhu v Van Dyke (2014) 251 CLR 505
Stefanetto v Forestry Commission of New South Wales [1975] 1 NSWLR 332
Tempe Recreation Reserve Trust v Sydney Water Corporation (2014) 88 NSWLR 449
Tidd v Lister (1852) 10 Hare 140
Treweeke v 36 Wolseley Road Pty Ltd (1973) 128 CLR 274
Trewin v Felton (2007) 13 BPR 24,579
Turner v General Motors (Aust) Pty Ltd (1929) 42 CLR 352
Westfield Management Ltd v Perpetual Trustee Co Ltd (2007) 233 CLR 528
Zenere v Leate (1980) 1 BPR 97,029

Category:

Principal judgment

Parties:

First plaintiff: Australian Unity Retirement Living Management Pty Ltd (ACN 003 434 115)
Second plaintiff: Lifestyle Manor Bondi Pty Ltd (ACN 107 908 234)
Third plaintiff: Lifestyle Manor Anglesea Pty Ltd (ACN 114 898 181)
Fourth plaintiff: Australian Unity Aurora Pty Ltd (ACN 615 512 886)

  First defendant: Karimbla Properties (No. 10) Pty Ltd (ACN 102 955 644)
Second defendant: Yeshiva College Bondi Limited (ACN 129 848 595)
Third defendant: Our Big Kitchen Pty Ltd (ACN 149 226 568)
Fourth defendant: Rabbi Dovid Slavin

Representation:

Counsel:

 

Plaintiffs: M Walton SC, R Glasson
Defendants: S A Lawrence; A R Jordan

 

Solicitors:

  Plaintiffs: David Weinberger, KCL Law
Defendants: Joseph Callaghan, General Counsel – Meriton Group

File Number(s):

2017/279341

Publication restriction:

Pursuant to the Court’s order dated 24 July 2019 paragraph [159] has been redacted.

Judgment

1. These proceedings concern a dispute in relation to a shared driveway between two properties with addresses in Flood Street, Bondi.

2. The fourth plaintiff, Australian Unity Aurora Pty Ltd (“Australian Unity Aurora”) is the registered proprietor of the property located at 32 Flood Street, Bondi (“the 32 Flood Street Property”), on which is erected a retirement village that is operated by the first plaintiff, Australian Unity Retirement Living Management Pty Ltd (“Management”). Australian Unity Aurora is also the registered proprietor of an adjoining property (an extension to the retirement village) at 55 Anglesea Street, Bondi, which directly abuts the 32 Flood Street Property but faces onto Anglesea Street, the street which runs parallel to Flood Street one street to the East.

3. The first defendant, Karimbla Properties (No. 10) Pty Limited (“Karimbla”) is the registered proprietor of the properties located at 34 and 36 Flood Street, Bondi. On 34 Flood Street are a school, synagogue and library operated by the second defendant, Yeshiva College Bondi Limited (“Yeshiva”). On 36 Flood Street is a charitable community kitchen run by the third defendant, Our Big Kitchen Pty Limited (“OBK”).

4. The properties on 32 Flood Street and 34 Flood Street share a common boundary. Along that common boundary runs a shared driveway that enters Flood Street and provides access to Karimbla’s land and Australian Unity Aurora’s land. Part of the shared driveway is owned by Karimbla, and the other part is now owned by Australian Unity Aurora. Both Karimbla and Australia Unity Aurora enjoy an easement over the part of the driveway that they do not own. Some of the driveway owned by Australian Unity Aurora has no easement over it.

5. These proceedings commenced in 2017 concern claims by Australian Unity Aurora that Karimbla is excessively using the driveway easement in its favour and substantially interfering with the driveway easement in Australian Unity Aurora’s favour. It seeks relief restraining the alleged excessive use and substantial interference. The defendants deny these claims and contest the scope of the relief being sought against them by the plaintiffs. All statements of fact below are findings unless the context indicates otherwise.

6. In these well conducted proceedings, Mr M Walton SC and Mr R Glasson of counsel, instructed by KCL Law, appear for the plaintiffs. Mr S A Lawrence and Mr A R Jordan of counsel, instructed by General Counsel of Meriton Group, appear for the defendants.

Background to the Parties and the Land

7. The second plaintiff (Lifestyle Manor Bondi Pty Ltd, or simply “LMB”) was, until earlier in 2018, the registered proprietor of the property known as 32 Flood Street, Bondi, being Lot 2 in Deposited Plan 1094020 (“LMB land”). For convenience, this land is often referred to in these reasons simply as “Lot 2”. The first plaintiff, Management, operates a retirement village on the LMB land called “Lifestyle Manor”. The building on the LMB land includes an underground carpark (“the LMB car park”). This building opened in 2009 was the first stage in the development of these adjoining sites and for that reason is also sometimes referred to as “stage one”.

8. The third plaintiff (Lifestyle Manor Anglesea Pty Ltd, or simply “LMA”) was, until earlier this year, the registered proprietor of the property known as 33-55 Anglesea Street, Bondi, being land comprised of eleven separate titles (“the LMA land”). The second stage of the “Lifestyle Manor” retirement village, including an underground car park (“the Anglesea car park”), was built on the LMA land. After a development and construction program commencing in 2014, stage two, built on the LMA land, opened in 2016.

9. The larger retirement village now conducted on both the LMB land and the LMA land is wholly managed and administered by Management by agreement with each of LMB and LMA.

10. Karimbla is the registered proprietor of the property known as 34-36 Flood Street, Bondi, being Lot 1 in Deposited Plan 1094020. The Karimbla land is often referred to as “Lot 1” in these reasons. Karimbla’s land, Lot 1, is adjacent to the LMB land in Flood Street and also abuts the LMA land that faces Anglesea Street.

11. Both Flood Street and Anglesea Street run north-south. The LMA land abuts the LMB land and Karimbla’s land from an easterly direction. The relative positions of the various parcels can be seen from the aerial photograph, figure 1.

12. In early 2018, Australian Unity Aurora became the sole registered proprietor of both the LMB and the LMA land.

13. Karimbla and the companies associated with it, Yeshiva and OBK, conduct several activities on the Karimbla land. These include a school for children, a rabbinical school, a synagogue and a community kitchen operated by OBK. The OBK operation requires regular vehicular access for food deliveries, and the delivery and collection of rubbish bins.

14. The fourth defendant, Rabbi Slavin, is involved on behalf of the other defendants in all of these activities. He is a director of both Yeshiva and OBK.

The Driveway and Rights of Carriageway

15. On the border of the LMB land and the Karimbla land, and running downhill from Flood Street in the west, on a fairly steep grade in an easterly direction to the LMA land, is a sealed driveway 5.5 metres wide over which three rights of carriageway exist.

16. The parties agreed upon the accuracy of a diagram of the driveway that became Exhibit B in the proceedings. It sets out the relative position of the contentious Easement A and Easement B on the driveway, and also depicts the part of the driveway that is wholly owned by Australian Unity Aurora. It is set out below and shows in colour Easement A in green, Easement B in pink. And the area of the driveway on Lot 2, that wholly belongs to Australian Unity Aurora, is in blue. The parties sometimes referred to these easements just by these various colours.

17. Easement A shown on Exhibit B refers to the easement marked "A" on Deposited Plan 1094020. Easement A burdens Lot 2 and benefits Lot 1.

18. Easement B shown on Exhibit B burdens Lot 1 and benefits Lot 2. Exhibit B shows that part of the shared driveway is on Lot 1, and a larger part of it is on Lot 2. No part of the shared driveway is on the Anglesea land.

19. The shared driveway provides the only means of vehicular access to (a) the underground car park on Lot 2; (b) an underground car park on the stage two Anglesea land; and (c) to OBK, save for the fire escape to the synagogue and Yeshiva.

20. As Exhibit B above shows, the driveway is divided into three distinct areas. The area shown in pink is a strip of land of variable width (1.26 metres wide at the Flood Street, or western end, and 1.66 metres wide at the bottom, or eastern end) owned by Karimbla, and over which there is a right of carriageway benefiting the LMB land (but not the LMA land) in DP 1094020.

21. The area shown in green is land previously owned by LMB and now owned by Australian Unity Aurora over which there is a right of carriageway 2.5 metres wide benefiting the Karimbla land in DP 1094020.

22. There is also a separate right of carriageway burdening the LMB land and benefiting the LMA land which is 4.5 metres wide. This right of carriageway includes the strip of the LMB land marked in green, as well as that marked in blue: AD 571359. It also abuts the Karimbla land.

23. The area shown in blue is part of the LMB land over which only the right of carriageway benefiting the LMA land extends. Karimbla, and the other defendants, have no rights over the strip of land marked in blue.

24. Two thirds of the way down the driveway on the northern side, abutting the blue section, is the entry to the stage one car park. Almost directly opposite the entry to the stage one car park, on the south side of the driveway, is an entrance to OBK. It is located where the notation "ROC - ENTRY" appears on the plan, Exhibit B.

25. At the foot of the driveway, off the LMB land to the east, and clear of the Karimbla land, is an entry to the stage two car park on the Anglesea land. The access ramp to this car park was created in 2014-2016, by very substantial excavation out of the area of Easement A closest to the Anglesea land. This excavation and its associated retaining wall are discussed in more detail later in these reasons. The Anglesea or stage two car park is accessed by vehicles solely via the green and blue sections on Exhibit B, being part of the LMB land (now owned by Australian Unity Aurora), pursuant to the right of carriageway benefiting only the LMA land under AD 571359.

26. The plaintiffs accepted at the hearing, although not before, that the right of way benefiting the LMB land cannot be utilised by the occupants of the LMA land, but because of the right of carriageway, AD 571359, there is no need for them to do so.

27. On site, a white line is painted on the surface of the driveway (on the strip shown as pink on the plan). The actual Lot boundary between the strips shown as pink (the Karimbla land) and green (the LMB land) on the plan is about 18 centimetres inside the painted line, on the Karimbla, or southern, side.

28. The relevant terms of the rights of carriageway benefiting the Karimbla land and the LMB land respectively in DP 1094020 are:

"The owner of the lot burdened grants to the owner of the lot benefited the right to go, pass and repass through that part of the land burdened shown on the plan as "Right of Carriageway" 2.5 wide with or without motor vehicles. The cost of maintenance and repair of the Carriageway will be borne equally by the lot benefited and the lot burdened. The owner of the lot benefited must, in exercising its rights under this easement, cause as little inconvenience as practicable to the owner for the time being of the lot burdened." [Emphasis added].

Use of the Rights of Carriageway

29. The residents of the Lifestyle Manor retirement village, operated by Management, use the driveway to gain motor vehicle access between Flood Street and the two car parks continuously seven days a week.

30. The defendants use the driveway in several ways. First, schoolchildren walk along and gather on the driveway between the school and Flood Street. They walk beyond the pink and green sections in Exhibit B shown on the plan and onto the blue marked LMB land.

31. Secondly, vehicles delivering food and other items to OBK, as well as garbage trucks removing garbage from the Karimbla land, use the driveway. These vehicles commonly pass onto the blue section of the LMB land over which there is no easement in favour of the defendants, and also are commonly parked for periods of time on the driveway, encroaching on both the green and blue sections.

32. Thirdly, drivers of passenger vehicles use the driveway to pick up and drop off visitors and invitees of the defendants. These vehicles regularly pass onto the blue section of Exhibit B owned by LMB, later by Australian Unity Aurora, over which there is no easement in favour of the defendants, and are commonly parked unattended for periods of time on the driveway, encroaching on both the green and the blue sections.

33. The plaintiffs contend that these activities by the defendants have rendered the shared driveway extremely unsafe, given the use to which the plaintiffs rightfully put it, as access for their elderly residents to the two car parks leading off the driveway.

34. The principal issues are whether there is, and has been, such substantial interference with Easement B, or excessive use of Easement A, by reason of:

1. the defendants parking or leaving vehicles on the driveway;

2. the defendants authorising and inviting vehicles to stop and remain on the driveway;

3. leaving or causing waste bins to be left out on the driveway; and

4. authorising pre-school, primary and secondary school children to be on the shared driveway unaccompanied by an adult.

35. The other issues ultimately fell into the background in the proceedings.

36. Children on the Driveway. The manner of the use by Karimbla, its invitees and agents, of the right of way has created a situation which can rightly be described as dangerous, the danger being acute in relation to the lawful use of the shared driveway by the elderly residents of the retirement village. The plaintiffs say this is in itself sufficient to create an unreasonable and therefore excessive use of the right of way by Karimbla: see Prospect County Council v Cross (1990) 21 NSWLR 601; Burke v Frasers Lorne Pty Limited (2008) 14 BPR 26,111; [2008] NSWSC 988.

37. Rabbi Slavin regards the safety of children in his charge as his first priority. The instruction to all staff is that the driveway is out of bounds for children. Similarly, the instruction to all staff is that children using the driveway to access OBK are to be accompanied by an adult. But in my view, these instructions have failed and there are often children on the driveway unaccompanied by an adult and creating a regular traffic hazard.

38. Vehicles Stopping to Load and Unload at OBK. The right conferred by Easement A is expressed as a right "to go, pass and repass ... with or without motor vehicles". Whether such an easement is construed as conferring a right to stop to load and unload may depend on the circumstances. The owner of the dominant tenement ordinarily has the right to stop to load and unload, but this must be a de minimus use and no more: Bulstrode v Lambert [1953] 1 WLR 1064 at 1070; [1953] 2 All ER 728; Laris v Lin (No. 2) (2016) 18 BPR 35,917; [2016] NSWSC 560 (“Laris v Lin”), (at [118]).

39. On its proper construction, Easement A permits vehicles to stop in order to load or unload, in a manner incidental to their use of the easement. But the issue is whether that activity has been excessive here. In my view, it has because of the regularity with which this activity has obstructed passage of vehicles in the driveway.

40. Parking on the Shared Driveway. The right to pass and repass attaching to the Karimbla land does not include a right to park vehicles upon the right of way, or to permit Karimbla to license or invite or authorise any person to use the right of way without actually ensuring that those persons do not park on the driveway.

41. It is accepted that parents of students and others are told not to park on the shared driveway. There is a designated drop off and pick up zone for parents of students of the Yeshiva. But lengthy obstructive parking of vehicles beyond Rabbi Slavin’s instructions does occur often on the driveway.

42. Bins on the Driveway. The next main allegation is that the defendants have left or caused waste bins to be left on the driveway. The evidence does not strongly suggest that the bins often block the driveway, but it has occurred from time to time adding to the other hazards of the defendants’ conduct.

43. Part “D” of the Driveway. Invitees of the defendants, and the fourth defendant, walk on Part D, the blue section of Exhibit B, often enough to be a frequent hazard to drivers in an area that, if it were pedestrian-free, would provide passage where Lifestyle Manor drivers could feel they could drive without worrying about endangering others.

The Credibility of the Principal Witnesses

44. The plaintiffs called a number of witnesses from Management’s staff and residents of Lifestyle Manor to explain the detail of the obstruction and interference alleged on the driveway. Not all the witnesses on affidavit were cross-examined. Comments are made here about those who were.

45. Ms Karen Hart, an on-site manager, was a reliable witness, whose evidence the Court accepts. She was not prepared to commit herself beyond what she actually knew happened on the driveway or in Lifestyle Manor. If she did not recall a fact, she said so. She was prepared to make admissions if, according to her recollection, the admissions corresponded with the truth. She had quite a good recollection of her own more important decisions. And conceded not recalling her less important decisions.

46. Mr McMillan, the Lifestyle Manor manager, was a precise and reliable witness. He said no more than he felt safe to commit to. He explained the limits of what he could recall. I accept all his evidence about the traffic on the easements and its effect on the Lifestyle Manor residents.

44. Mr Howell, the Lifestyle Manor concierge, was a deliberate and careful witness who was an accurate observer of the driveway easement through his CCTV screen.

45. Mr Jones was a careful and thorough witness, whose evidence the Court accepts. He considered closely what he was asked. He only answered what he was sure of and conceded the limitations of his knowledge.

46. Mrs Segelov was a precise witness and a good observer who was obviously concerned about the safety of pedestrians, especially at the top of the driveway. She gave a compelling account of her own fear of an accident on the driveway. Her evidence is accepted.

47. Mrs Beverley Abrahams, a resident of the Flood Street stage one building, was a precise observer of events on the driveway. She could say clearly what groups of children she saw, either supervised and unsupervised, at different times and was sure about what she saw. She was a reliable observer who confirmed the obstructions to Lifestyle Manor residents when driving, due to both pedestrian and vehicular traffic on the driveway. Her evidence is accepted.

48. Mrs Deirdre Melville was another resident of the Flood Street building. She was clear as to what she saw and gave answers that showed a firm recollection. She was a reliable and alert observer. Her recollection was not shown to be faulty under cross-examination. She gave compelling evidence about cars parking outside OSK on Sundays for children’s parties for lengthy periods. Her evidence is accepted.

49. Mrs Beverley Cohen was a resident of the Anglesea building and, like other witnesses, she had taken the trouble to photograph what she saw. She could not always decide which cars were parked on the driveway and which were loading or unloading. But she consistently supported the evidence of the plaintiffs’ other witnesses. Her evidence is accepted.

50. Mr Harold Zuckerman is a resident of Lifestyle Manor stage one. He can see half the driveway from his apartment but cannot see OBK, other than from his balcony. He is often in and out of the garage and is very active, so he is a frequent observer of events on the driveway. He had an acute power of observation and only stated what he saw, where he conceded limits on his observation, and confirmed a picture of regular delays and obstruction to Lifestyle Manor drivers using the driveway. His evidence is accepted.

51. Mr Rex Honey is a resident of the Anglesea building. He was an excellent witness and a reliable observer. He was younger than many of the other residents of the building. He was firm in what he remembers and was clear on the detail. He cordially acknowledged the limits of what he could recall. His affidavit evidence was not shifted in cross-examination. A number of his photos were of vehicles that could have been loading or unloading, rather than parked, but the picture he reliably created was of regular delays and obstruction to Lifestyle Manor drivers using the driveway. His evidence is accepted.

52. Mr Cedric Amoils is a resident of the Flood Street building. He was the Chairman of the Residents Committee for a number of years. He had firm and clear recollections of obstruction of the driveway. He could not be more specific as to when certain events happened, but there is no reason to doubt the accuracy of what he says. He says a white line drawn on the driveway has improved the behaviour of the children, but narrowed the driveway and made it more difficult to use. He had a clear recall of unsupervised children (including older ones) spreading all over the ramp. His evidence is accepted.

53. Mr Amoils was a reliable observer of events on the driveway. He pointed to the hazard of parked cars causing people to walk on the other side of the driveway exposing them, and drivers, to danger. He was an especially frequent observer of the driveway, because he would often respond to complaints by other residents in his role as Chairman of the Residents Committee.

54. On the other side, the fourth defendant, Rabbi Slavin was a careful and reliable witness. He was highly knowledgeable about all the systems in operation at Yeshiva and OBK and the detail of the instructions given to staff. He had a slight incapacity to see how the sensible systems he had sought to put in place could be departed from by others. He was prepared to make some admissions. He took a realistic view of what was shown on the video files and does accept that transgressions of what he has set in place, to govern what happens on the easements, do occur that he cannot always control them, which accounts for most of the differences between his evidence and that of the witnesses on the other side.

55. The two expert traffic engineers Mr Ken Hollyoak and Mr Zoran Bakovic were thorough and creative experts, who gave very enlightening and co-operative evidence.

Conclusions on Substantial Interference and Excessive User

59. On the evidence of these witnesses, the following matters are all established as occurring due to the defendants’ activities on Easements A and B: lengthy periods of car parking; long periods of truck and commercial vehicle loading and unloading; multiple commercial and non-commercial vehicles stopped or parking; and difficulties in Lot 2 residents manoeuvring around these vehicles, exacerbated at times by pedestrian activity. All this leads to real delays, and consequent hesitation on the part of residents from Lot 2 exercising their rights over Easement B land and using the Lot 2 portion of the driveway land, the subject of Easement A.

60. These vehicle problems are compounded by the unrestrained and unpredictable nature of the pedestrian activity the defendants generate on the driveway, which involves everything from the gathering or queuing of people around OBK, young children running onto an area used for elderly drivers, and the unrestrained wandering of pedestrians across the easements (and incidentally trespassing on Lot 2) instead of being reasonably and effectively directed to a designated pathway area, so they do not present a driving hazard to Lot 2 motorists also using the driveway.

61. The right to pass and repass with or without motor vehicles in the right of carriageway benefiting Lot 1, Easement A, includes the implied right to stop to pick up or offload passengers, as this is necessary for the effective use and enjoyment of the Karimbla land: Zenere v Leate (1980) 1 BPR 97,029. But that use requires Karimbla to cause as little inconvenience as practicable to the rights of LMB (and now Australian Unity Aurora).

62. The Court concludes, particularly on the detailed observations evidence of the residents of Lifestyle Manor and the staff of Management, that all types of vehicular activity by agents or invitees of the defendants, and at times pedestrian activity, have both (1) substantially obstructed Australian Unity Aurora’s exercise of its Easement B rights (and before that the rights of LMB), and (2) excessively burdened Australian Unity Aurora’s exercise of its ownership rights (and before that the ownership rights of LMB) over its land the subject of Easement A. Put simply, and in summary, the residents of the retirement village are constantly encountering parked cars, stopped garbage trucks and other loading and unloading vehicles, and wandering, queuing and congregating pedestrians on the driveway that frequently cause the obstructions in (1) and the unreasonable burdens in (2).

63. The most common impairment of these rights is the incapacity of Lifestyle Manor residents, whose safety and convenience is the responsibility of Management, to themselves travel freely and safely upon the driveway in their motor vehicles to and from the Stage One car park. There has also been an impairment of LMA’s, and later Australian Unity Aurora’s, rights to use the second stage carpark from the Anglesea building over the area of Easement A.

64. The continuous and excessive conduct of the defendants in their use of the driveway has also interfered with the use and enjoyment of Lot 2 constituting an actionable nuisance: see Hargrave v Goldman (1963) 110 CLR 40 at 59; [1964] ALR 377 and Trewin v Felton (2007) 13 BPR 24,579; [2007] NSWSC 851.

65. Other more detailed findings about excessive user of Easement A, and substantial interference with Easement B, are set out later in these reasons when the discretionary considerations associated with relief and the form of final relief are discussed.

66. Other Matters. In determining whether there has been excessive user of Easement A, or substantial interference with Easement B, by the defendants, a number of other matters raised by the defendants should be addressed.

67. First, it should be recognised, as the defendants submit, that it is impracticable for pedestrian visitors to OBK to access OBK by any means other than the driveway. Inmates on day release, troubled youths and other strangers seek to access OBK. They cannot access OBK either through the front door to No. 36, or down the southern laneway and across the school playground, as this would involve their walking through a school with young children. Using the subject driveway is a necessity. But it must still be used in accordance with the terms of Easements A and B.

68. Secondly, rubbish cannot be collected using the laneway on the Southern side of 36A Flood Street. That laneway is narrower and not robustly concreted. It also has other residents on its Southern side. The land at the rear of 36 is not level with that at the rear of 36A. If OBK’s bins were to be stored on 36A, then some 18 to 20 bins’ worth of rubbish would need to be carried by hand from 36 into the 36A bins each week. This would be quite unworkable. It can be accepted that the defendants have no other realistic alternative means of access to OBK.

69. But there is a more fundamental related issue. No. 36 and No. 36A are not the same tenement. At present, they are owned by the same owner. But excessive user and substantial interference cannot be judged treating them as the one tenement. The plaintiffs should not be placed in a better position because the defendants fortuitously also now own No. 36A.

70. Thirdly, a geometrical exercise was done to show that residents exiting the LMB garage can do so when there is a vehicle (even the Bingo garbage truck) outside OBK. Some photos, videos and Mr Howell’s evidence demonstrate this too. But the evidence also shows that this only reliably works when trucks are parked close to the wall of Lot 1. And when cars are parked on Easement B and A access to LMB residents is impeded.

71. Fourthly, the easements open onto a public street. The defendants have legal limits on their capacity as private citizens to deter unauthorised parking by clamping and towing away a car parked on their on private land: see Local Government Act 1993, ss 651B and 651C. This should be taken into account in their favour. But stranger parking is not established to be a very large part of the defendants’ excessive use or substantial obstruction. But the defendants must still comply with the terms of Easements A and B. Increased overall supervision may be the best deterrent against this kind of public behaviour.

Discretionary Considerations: Should Relief Be Granted

72. The plaintiffs claim equitable injunctive relief to restrain what they say is excessive user of Easement A and substantial interference with Easement B. Such relief is discretionary. The defendants advance two main arguments that discretionary relief should either not be granted or should only be granted upon terms because of the plaintiffs’ conduct. Those arguments are based on the plaintiffs’ own alleged substantial interference in Karimbla’s enjoyment of Easement A and the plaintiffs’ alleged delay. The responses to these arguments and relevant findings are set out in this section. Some of the defendants’ other arguments on discretionary issues have been more appropriately dealt with when the question of whether or not the plaintiffs have made out their case was discussed above.

73. Alleged Substantial Interference with Easement A by the Plaintiffs. The defendants’ first contention is that the plaintiffs themselves have substantially interfered with the defendants’ enjoyment of Easement A since 2014. The undisputed photographic evidence well shows that, during the years from 2014 to 2016, when the present building was being constructed on the Anglesea land, builders fenced off the portion of the driveway between OBK and the eastern boundary of Easement A. As a result of that fencing, members of the public seeking access to OBK were not able to use the fenced off area, as Mr Derek McMillan, a managing director of Australian Unity since September 2017, agreed. These acts were clearly a substantial interference with OBK’s enjoyment of Easement A and were actionable in nuisance at the suit of Karimbla, the registered proprietor of Lot 1 that was benefited by Easement A.

74. Mr McMillan also confirms that one or more of the plaintiffs, other than the fourth plaintiff, Australian Unity Aurora, was responsible for these construction works. It appears to have been LMB or LMA, or both. The precise identity of which of these two plaintiffs was involved does not matter for present purposes. But it is not in contest that the fourth plaintiff was not responsible for any of this construction work.

75. Fencing off the construction area during these works on the Anglesea land prevented vehicles servicing OBK from loading and unloading further to the south on Lot 1. That in turn, increased the difficulties LMB residents encountered when exiting LMB’s garage on the northern side of the driveway. The further down the driveway towards the entrance to OBK (that is, to the east) that a vehicle is stopped, the more likely it is that LMB residents can negotiate the corner when turning right out of LMB’s garage to go up the driveway. Mr Howell, the concierge for the plaintiffs’ retirement villages, explained in his evidence, which the Court accepts on this point, that for “the people coming out of the LMB garage, it is preferable if the vehicle in front of OBK is parked further towards Anglesea” but the limiting factor is that such a vehicle cannot “park any further towards Anglesea Street than that retaining wall” adjacent to the ramp into the Anglesea building.

76. When the construction works on the Anglesea land were completed in 2016, a different and permanent interference with Karimbla’s enjoyment of Easement A began, and has continued ever since. From that time in 2016, on the ramp, leading from the basement of the Anglesea building upwards to the ground level where OBK is situated, had been fully excavated out of part of the surface of Easement A and the excavation finished in concrete. Together with its retaining wall structure, which secured and supported the Lot 1 land to the southern side of the ramp, this excavated ramp (“the Anglesea ramp”) so sharply lowered the surface of the land it occupied that it substantially reduced the capacity of the owner of Lot 1 to enjoy many of the advantages that Easement A conferred.

77. In my view, the Anglesea ramp and the retaining wall now continue to prevent Karimbla from having vehicular access off the easement and into the rear of Lot 1. This new topography denies Karimbla the opportunity of using the open space at the rear of Lot 1 for loading and unloading and forces Karimbla to use the space on Easement A itself more often for that purpose. As Mr Lawrance correctly submits, so far as trucks, and particularly garbage trucks, are concerned, this factor is a contributor to any excessive user of Easement A (and any substantial interference with Easement B) as Karimbla may be found to be undertaking.

78. In my view, no other conclusion is reasonably available on the evidence. The Anglesea ramp and retaining wall mean that it is now not possible for the defendants to use the eastern end of Easement A to move vehicles off the driveway to load and unload or to turn around. This reduces the flexibility available for Easement A to accommodate the use of Lot 1, especially for larger trucks. The traffic engineer called by the plaintiffs, Mr Bakovic, expressed his concerns about the safety of large trucks using the driveway. His opinion was that if there were enough space for large trucks “to turn around and exit” going uphill in a forward direction, that would be “reasonably safe” in his opinion. The Court accepts this view and concludes that a significant level of loading flexibility and safety would have been afforded to Lot 1 in using Easement A, if access to the rear of Lot 1 were not denied to Lot 1 by the Anglesea ramp and associated retaining wall structures.

79. The Court accepts the defendants’ case that the plaintiffs’ complaints about the inconvenience caused to them by delivery vehicles stopping on the driveway outside OBK (and thereby excessively using Easement A and substantially interfering with Easement B) is at least in part the result of these new structures, the Anglesea ramp and retaining wall, interfering with the defendants’ enjoyment of Easement A.

80. These primary findings on the defendants’ first contention raise further issues as to whether discretionary relief should be denied to the plaintiffs, or only granted on terms. These further issues are: the threshold question - can the past excavation of the Anglesea ramp and construction of the retaining wall be weighed as a discretionary consideration against any of the plaintiffs; if it can, should that lead to a denial of relief, or a grant relief upon terms.

81. Substantial Interference - Past Anglesea Excavations. The plaintiffs submitted that the Court cannot take into account the effect of the Anglesea ramp and retaining wall on Lot 1 in considering whether or not to grant discretionary relief to the plaintiffs.

82. The defendants submit that the Court can take it into account. The defendants’ case tended to group all the plaintiffs together and say that they were all actors responsible for the construction of the Anglesea ramp and retaining wall, that they had therefore all caused a permanent substantial interference to Karimbla’s enjoyment of the benefit of Easement A and had thereby occasioned an actionable nuisance to Karimbla, which was now a basis to deny relief to them.

83. But the plaintiffs submit that it was only in 2018 that the fourth plaintiff, Australian Unity Aurora, acquired the servient tenement of Easement A (the green portion of Exhibit B) that benefits Karimbla’s land, Lot 1, and which is also the dominant tenement of Easement B. The plaintiffs submit Australian Unity Aurora was entitled to rely, at that 2018 acquisition, upon the terms of the registered easement on the title and on its own inspection of the land as it was in 2018. Under the Torrens system, it was not obliged to go back in time to ascertain what was in the minds of the grantor and the grantee of the easement at some earlier time. The plaintiffs submit that Australian Unity Aurora is not bound by anything that might have occurred in the past between the then owner of Karimbla’s land and any previous owner of the servient tenement. Australian Unity Aurora further submits that even if the defendants were to raise their present contention to the level of an equitable claim, such as a proprietary estoppel, that it did not take title with notice of any such interest. On the conventional application of the principles of indefeasibility, Australian Unity Aurora submits it is only bound by the terms of the registered easement and nothing more.

84. These submissions can be accepted, as far as they go. But first it should be noted that the defendants’ case groups all the plaintiffs together as responsible for the construction of the Anglesea ramp and retaining wall, causing a substantial interference to Karimbla’s enjoyment of Easement A. But this grouping does not fully address the point that Australian Unity Aurora now makes.

85. In the Court’s view, it is necessary to analyse the position of Australian Unity Aurora and that of the other plaintiffs separately, as the basis for assessing a grant of discretionary relief in relation to each is different. Although as these reasons show, the end result is much the same: (1) relief can be granted to Australian Unity Aurora upon terms for the results of the building of the Anglesea ramp and retaining wall; and (2) relief can be granted to the other plaintiffs (if indeed such relief is still now required) on terms, because of their involvement in building the Anglesea ramp and retaining wall. Each of these two situations is now dealt with in turn.

72. Australian Unity Aurora’s position. The defendants did not seek to establish that Australian Unity Aurora had notice (perhaps through the agency of other plaintiffs) of any equitable claim binding its conscience that would allow equitable relief against it directly based on the actions of others building the ramp, or that Australian Unity Aurora had itself, or through its agents, built the ramp and retaining wall thereby committing a nuisance to Karimbla’s rights. So, Australian Unity Aurora submits that past events prior to its acquisition of indefeasible title can be ignored and that now the only relevant inquiry is into the terms of Easement A and the present physical state of its dominant and servient tenements.

73. The Court accepts Australian Unity Aurora’s argument that it is protected by its indefeasible title from having the building of the Anglesea ramp and retaining wall attributed to it as misconduct that may disentitle it to equitable relief. As knowledge of the other plaintiffs conduct is not to be attributed to it here, it took title to Lot 2 and the LMA land in 2018 that was unimpeachable on the grounds of the prior conduct of any plaintiffs other than itself.

74. But that is not the end of the matter. A question still remains for the analysis of Australian Unity Aurora’s position: can anything be inferred from the terms of Easement A, and the present physical topography of its dominant and servient tenements, that the Court may take into account in considering whether or not to deny a grant of equitable relief here, or make a grant of relief on terms. The answer, in my view, is that rather more can be taken into account here than Australian Unity Aurora submits.

75. But first, the applicable law in relation to Australian Unity Aurora’s own position should be briefly stated. Much of the following case law was referred to in the submissions put on behalf of Australian Unity Aurora. In construing an easement, the Court can take into account: (a) the information appearing in the register in relation to the relevant folio identifiers and registered instruments, including the deposited plans and Conveyancing Act s 88B instruments; and (b) evidence of the physical characteristics of both the servient and dominant tenements.

76. Information in Category (a) can be used to ascertain the extent of grant of rights under an easement. The High Court in Westfield Management Limited v Perpetual Trustee Company Limited (2007) 233 CLR 528 at 538-539; (2007) 239 ALR 75; [2007] HCA 45, at [35] - [39]; (“Westfield”), states that consistently with the scheme of the Torrens system a third party who inspects the Register cannot be expected to look further for extrinsic material which might establish facts or circumstances existing at the time of creation of a registered dealing and placing the third party in the situation of the grantee: see also Proprietors of Strata Plan No. 9,968 & Anor v Proprietors Strata Plan No. 11,173 [1979] 2 NSWLR 605 at 610-612, per Needham J.

77. In Westfield, the High Court held: (at [37]) that “rules of evidence concerning the construction of contracts inter partes do not apply to the construction of an easement under the Torrens system”; (at [38]) that “a third party who inspects the Register cannot be expected, consistently with the scheme of the Torrens system, to look further [than the Register] for extrinsic material which might establish facts or circumstances existing at the time of the creation of the registered dealing and placing the third party…in the situation of the grantee”; (at [42]) that user under a registered easement “may change with the nature of the dominant tenement so long as the terms of the grant are sufficiently broad does no violence to the principles of the Torrens system”; (at [44] and [45]) that “evidence is admissible to make sense of that which the Register identifies by the terms or expressions found therein”; and (at [45]) nothing supports the admission of…evidence to establish the intention or contemplation of the parties to the grant of the easement”.

78. But information in category (b) may also be taken into account in considering the extent of rights granted under an easement. In Sertari Pty Limited v Nirimba Developments Pty Ltd (2008) NSW ConvR 56-200; [2007] NSWCA 324, (at [15]), when construing the words of an easement to determine whether user of a right of way was excessive, the Court of Appeal in this State confirmed it may have regard to the physical characteristics of the land: see also Hare v van Brugge (2013) 84 NSWLR 41; [2013] NSWCA 74, (at [18]) (“Hare”); Tempe Recreation Reserve Trust v Sydney Water Corporation (2014) 88 NSWLR 449; [2014] NSWCA 437, (at [77]); Sader v Langham [2018] NSWSC 727, (at [11]) (“Sader”); and Lowe v Kladis (2018) 18 BPR 38,599; [2018] NSWCA 130, (at [86]-[88]), (“Lowe”).

79. The defendants submitted that the Court can take into account the physical characteristics of the land at the time of the grant of the easement: citing Sertari, (at [15]), and Sader, (at [11]). The defendants argue, on the basis of these authorities, that the Court can look back to the grant of Easements A and B in 2006 and then attribute the intervening acts of excavation to the plaintiffs, including Australian Unity Aurora, and then conclude that all the plaintiffs have by those acts substantially interfered with Karimbla’s rights under the Easement A.

80. But in my view, that submission takes Sertari and Sader much too far. Rather, those cases and Van Brugge (at [34]) really stand for the proposition that the Court can look at the physical features of the tenements which “are there for all to see, at least as they stand today”. They do not authorise the Court to embark on an inquiry back to the time of the grant. Such an inquiry would be contrary to the principles stated in Westfield.

81. But how does one construe the present rights granted under an easement if the physical characteristics of the land have changed after the time of the grant, as they have here? Some insight as to just how difficult an inquiry into past changes to the land might become in construing the present rights granted under an easement is afforded by the decision of the Queensland Court of Appeal in Currumbin Investments Pty Ltd v Body Corp Mitchell Park CTS [2012] 2 Qd R 511, (at [49]); [2012] QCA 009 (McMurdo P, Fraser JA and Fryberg J), where Fryberg J said, “But depending on the nature of the characteristic in question or the possibility of change in the characteristic over the period since the easement was granted, cases may arise where even a physical characteristic may not be able to be taken into account consistently with the principles of the Torrens system. For similar reasons, Hodgson JA’s reference to the use being made of the tenements at the time of the grant is problematic. In a dispute not long after the grant that information may be readily available to third parties, but this may not be the position many years later. If the question of construction is to be approached from the point of view of a third party inspecting the register, it may be that the scope for consideration of extrinsic evidence is reduced over time. The consequences of such an approach would need to be considered carefully. I express no opinion on the matter”.

82. It is difficult to give content to the rights under an easement unless some account is taken of the physical characteristics of the dominant and servient tenements, as Westfield permits. Otherwise the parties are engaged in an empty debate about the meaning of words in an instrument without reference to what is happening on the ground. The limitations of such a narrow view was emphasised by Campbell JA in Phoenix Commercial Enterprises Pty Ltd v City of Canada Bay Council [2010] NSWCA 64, (at [158]).

83. The approach taken in these reasons, when looking at Australian Unity Aurora’s position, is only to take into account information appearing in the Register and the present physical characteristics of Lots 1 and 2 in order to determine the nature of the rights presently conferred under Easement A.

84. All that can be said of the past against Australian Unity Aurora is that there is no evidence that it has ever substantially interfered, or consequently now continues to interfere, with Karimbla’s rights under the easement. What can be said against it is that it acquired the Anglesea land just as it looks today with the ramp and retaining wall, as they are now.

85. But the scope of Australian Unity Aurora’s rights and Karimbla’s respective rights can be analysed and understood further within the scope of the inquiry permitted by Westfield. The starting point for analysis is the Register. Easement A on the Register gives Karimbla the right “to go, pass and repass” over the servient tenement “with or without motor vehicles” but “in exercising its rights under this easement, cause as little inconvenience as practicable to the owner for the time being of the lot burdened”.

86. The Anglesea ramp and retaining wall, as they are today, are physical features of the land that cannot be ignored. They prevent passage by vehicles into the rear of Lot 1. Their presence in the topography of the land burdened has a direct effect on how the grant under the easement should now be construed. Karimbla’s exercise of its Easement A right to “go, pass and repass” with vehicles is limited to using vehicles in a particular way: by stopping them on the servient tenement itself to load and unload. Karimbla’s rights do not include the option of driving them into Lot 1 and vacating the easement to facilitate the passage of the vehicles of the servient tenement over the same area.

87. The impassability of part of the servient tenement to access to the rear of Lot 1 is a matter that can be taken into account to construe the grant and to measure what is reasonable and what is excessive use of the easement and what causes “as little inconvenience as practicable to the owner for the time being of the lot burdened”. This impassibility of part of the servient tenement means that: (1) stopping on the easement itself, rather than the rear of Lot 1, to load and unload is a necessity for servicing the activities conducted on Karimbla’s land; (2) more obstruction to the passage of vehicles otherwise traversing across the plaintiffs’ land is to be expected from time to time from Karimbla’s use of the easement, than if Karimbla actually had physical access to the rear of Lot 1; and (3) because all loading and unloading will be on the easement, Karimbla is not to be judged against a standard in “caus[ing] as little inconvenience as practicable” to the plaintiffs, as if it should be able to load and unload within Lot 1 itself.

88. Another matter that can be inferred directly from the physical topography of the servient tenement, and the present lack of access options for Karimbla, is that the impassibility into the rear of Lot 1 to Karimbla’s disadvantage is a state of affairs that simultaneously advantages Australian Unity Aurora. The existence of the Anglesea ramp allowing entry to the Anglesea building implies this directly, without having to make any inquiry into the past. This balance of topographical advantage and disadvantage between the servient and dominant land could theoretically be changed better to accommodate Easement A, but no one has suggested at any time in these proceedings any way that could easily be done.

89. These matters imply a degree of flexibility in my view, in making the common sense judgments that are required here about whether there is excessive user of the easement and how relief should be appropriately moulded to deal with such excessive user. The topography of the land that allows Anglesea residents access to the easement also denied Karimbla the option of loading/unloading off the easement. The terms of any well-moulded relief must recognise this critical interrelationship.

90. In summary, the Court concludes that Australian Unity Aurora has not substantially interfered with Easement A. Nor, after it purchased the land in 2018, can it be said that the other plaintiffs have continued to substantially interfere with the easement. But the Court must realistically judge Karimbla’s vehicular use of Easement A, given the physical limitations on its access to Lot 1.

91. The Position of the Other Plaintiffs. It is not in contest that some of the plaintiffs, other than Australian Unity Aurora, constructed the Anglesea ramp and retaining wall between 2014 and 2016. But those plaintiffs do not now own the servient land for Easement A, which is also the dominant tenement for Easement B. They transferred their titles to Australian Unity Aurora early in 2018.

92. On the Court’s largely uncontentious findings about the construction of the Anglesea ramp and retaining wall, there may be a readily arguable action for damages against LMA or LMB in the tort of nuisance: (1) both for a closed period in the past between 2014 and 2016, when access to Easement A was fenced off; and (2) for the permanent damage that its past conduct has now done to Karimbla by constructing the Anglesea ramp and retaining wall. An actionable nuisance, and with long term damages consequences, can arguably be committed by someone who is no longer an owner of the Anglesea land. For LMA or LMB to transfer this land to Australian Unity Aurora does not absolve them of liability to Karimbla for any such tort.

93. But such an action in tort is not the subject matter of Karimbla’s amended cross-claim. Rather, its amended crossclaim seeks a declaration and damages in trespass against LMA for the conduct of its residents on the Anglesea land using Easement B, over which the Anglesea land has no rights.

94. The unpleaded claim in the tort of nuisance against LMA/LMB mentioned here was not the focus of the parties’ submissions at the hearing. But in my view, it may only be possible to finally quell this dispute if the Court were to give leave for this action in tort to proceed. The result of the action in tort may go a long way towards solving the parties’ continuing disputes about who will bear the future financial cost of increased supervision on the driveway occasioned by traffic concentration due to the Anglesea ramp and retaining wall. If Karimbla were to push ahead with such an action and succeed, it may have an argument that it should be indemnified in damages for the ramp-related future financial cost of increased supervision on the driveway. The Court will reserve for consideration whether or not it should permit the amended cross-claim to be further amended to allow this claim to be brought, or whether, if such a claim in tort is to be pursued, it will need to be done by fresh action. If the latter, as the Court has a duty to quell this dispute, the Court may be able to give directions for such an action to be determined quickly by a Court appointed referee. But it may also be that the way that this matter has been dealt with in these reasons solves the problem without further action.

95. The Court’s immediate task is to consider what equitable relief, if any, should be granted to such of the plaintiffs who still need relief. Given the present state of the plaintiffs’ titles, which are all held in Australian Unity Aurora’s name, the plaintiffs other than it may not need any equitable relief. Entitlement to such relief here is ancillary to current rights of ownership of the dominant and servient tenements of Easements B and A.

96. But if any of the plaintiffs other than Australian Unity Aurora, such as LMA or LMB, now seeks orders for equitable relief, the Court can take into account against them their conduct in building the Anglesea ramp and retaining wall. There is no doubt that these structures caused substantial interference with Karimbla’s enjoyment of its rights under Easement A. One only has to see the site and the photographs of the excavation of the ramp area to infer that the construction prevented Karimbla using the rear of Lot 1 as a vehicle turning area. And it still inhibits Karimbla’s use of Easement A by concentrating traffic stoppages further west up along the easements towards the LMB garage entrance.

97. Whatever may be Australian Unity Aurora’s position, to the extent the other plaintiffs seek equitable relief, their own conduct can be taken into account to determine if relief should be denied to them or only granted on terms.

98. And when terms are to be formulated the following principles apply. A party seeking equity must do equity. This doctrine is frequently applied: Tidd v Lister (1852) 10 Hare 140, at 153; 68 ER 872, Chillingworth v Chambers [1896] 1 Ch 685, Forsyth v Blundell (1973) 129 CLR 477, at 504 and Stefanetto v Forestry Commission of New South Wales [1975] 1 NSWLR 332. This means that a party seeking equity must be prepared to submit in that suit to any direction which a court of equity may find it proper to give: Langman v Handover (1929) 43 CLR 334, at 351; [1930] ALR 197.

99. But the doctrine has limits. The Court cannot impose arbitrary terms upon the grant of relief that are not justified by the defendant’s existing legal or equitable rights: Hanson v Keating (1844) 4 Hare 1, at 6; (1844) 67 ER 537, at 539. The same idea has pithily been put this way: “the maxim requires the plaintiff to do equity, not justice”: JD Heydon, MJ Leeming, PG Turner, Meagher, Gummow & Lehane’s Equity: Doctrines and Remedies (5th ed, 2015, LexisNexis Butterworths), at 77.

100. Similarly, those who come into equity must do so “with clean hands”: Nelson v Nelson (1995) 184 CLR 538, at 550; (1995) 132 ALR 133; [1995] HCA 25. The two maxims are related. The maxim “they who seek equity must do equity” looks to a plaintiff’s future conduct and the “clean hands” requirement looks to a plaintiff’s past conduct: Black Uhlans Inc v New South Wales Crime Commission (2002) 12 BPR 22,421, at 22,428; [2002] NSWSC 1060. The defendants seek to deploy both these principles here.

101. Here the placement of the Anglesea ramp and the retaining wall all appear to be actionable wrongs by LMB/LMA at the suit of the defendants. The construction of the Anglesea ramp and the retaining wall obstruct the defendants’ use of Easement A and still constitute a nuisance of which the defendants have every right to complain. This is not something that the Court can ignore when granting equitable relief, notwithstanding that came about after Council approval of the Anglesea building. The Council’s approval is not obviously a defence available to the owners of the Anglesea land to the defendants’ claims in nuisance. For the Court to impose terms upon such relief, as LMB or LMA require, falls well within traditional principles governing the imposition of such terms.

102. Substantial Interference, all Plaintiffs - Relief Denied, or on Terms. The defendants submitted that, because the plaintiffs have substantially interfered with the defendants’ use of Easement A, that should lead to a complete denial of any relief, or alternatively to a grant of relief on terms.

103. The Court’s conclusion that Australian Unity Aurora did not substantially interfere with Karimbla’s rights under Easement A undermines the primary basis of the defendants’ argument that relief should be wholly denied on this ground against it and the Court will not do so. But the Court’s analysis above would justify a grant of relief to it moulded on terms that account for the current topography of Easement A.

104. But the conduct of the other plaintiffs, LMB and LMA, has substantially reduced Karimbla’s capacity to enjoy its rights in using the easement. Subject to one procedural matter, their conduct can be used either to deny them equitable relief or to impose terms on any grant of equitable relief to them.

105. The procedural matter is what Mr Walton SC submitted, that the issue of the plaintiffs’ conduct as potentially denying equitable relief or leading to a grant of relief on terms had not been pleaded against his clients. It is true that paragraph [46] of the Defence to Amended Statement of Claim pleads an acquiescence case, rather than a defence that the plaintiffs should do equity as a condition of a grant of relief. But Mr Lawrence opposed the plaintiffs’ case for equitable relief with this contention well to the fore. When Mr Walton SC raised this point in reply on the last day of the hearing, the Court immediately offered him the option of an adjournment, if he was prejudiced in meeting this claim. But Mr Walton SC declined the offer. The Court can consider the plaintiffs’ conduct as an answer to any remaining claim of LMB or LMA for equitable relief.

72. But relief should not be denied here, if these other plaintiffs still require it. The Court has found excessive user of Easement A by the defendants and substantial obstruction of Easement A. This situation strongly requires the Court’s intervention to put firmly at an end the excessive user and the substantial obstruction. A denial of relief is a recipe for growing mutual inconvenience, leading to escalating unregulated conflict on the driveway arising from frustrated expectations, and risking unforeseen dangers to its users – both pedestrian and motorist. The Court has reached this view having heard the evidence of the motorists, and of the pedestrians involved, and the managerial staff who are required to manage the, at times, unpredictable nature of these disputes impacting on both Lot 1 and Lot 2.

73. But as will be seen below, when the form of orders to be made is considered in more detail, the Court will carefully mould one aspect of the relief to be granted to any plaintiff that requires relief, because of the effects of the Anglesea ramp and retaining wall. The question of what relief should be given about heavy vehicular access on the easement requires special consideration. In the case of Australia Unity Aurora, this consideration comes into play because of the current topography of the land. In the case of LMB and LMA, this consideration is in play because of the principle: one who seeks equity must do equity.

74. Delay. The defendants contend that the plaintiffs have grossly delayed before bringing these proceedings, leading to the Court in its discretion declining relief. The defendants point out that one or other of the plaintiffs has been complaining about vehicles stopping on the driveway since as far back as 2011. Despite this, the defendants submit that the plaintiffs did not commence proceedings until 2017. In the meantime, the Anglesea ramp and retaining wall have been built. The defendants submit that this lengthy delay, together with the construction of the Anglesea ramp and retaining wall in the meantime, have prejudiced the defendants sufficiently for the Court now to deny any grant of equitable relief here on discretionary grounds.

75. Delay of itself may be a ground for refusing final injunctive relief: Carlton and United Breweries (NSW) Pty Ltd v Bond Brewing New South Wales Ltd (1987) 76 ALR 633. Further, if a plaintiff’s delay in bringing legal proceedings would make it practically unjust to grant injunctive relief, either because the delay constitutes conduct equivalent to a waiver of the plaintiff’s rights or because the delay has caused the defendant or a third party to materially alter their position during the period, then injunctive relief may be refused: see Lindsay Petroleum Co v Hurd, Farewell & Kemp (1874) LR5PC 221, at 239-240, per Lord Selborne LC, cited with approval by the High Court in Turner v General Motors (Aust) Pty Ltd (1929) 42 CLR 352, at 366 per Isaacs J; (1929) 3 ALJR 239.

76. But any delay here was not gross. Australian Unity Aurora only purchased the dominant tenements in 2018. It is the principal claimant to relief. The other plaintiffs are not guilty of unreasonable delay for waiting until after the Anglesea land works had commenced before commencing proceedings, and then waiting until the consequences of those works had settled down before deciding whether or not to commence proceedings.

77. The defendants say that had they known of the plaintiffs’ present claim they would have opposed the development application for the Anglesea works, or sought its modification for them to retain access to the rear of Lot 1. But it is difficult to blame this as a source of prejudicial delay on the plaintiffs, when the potential prejudicial effect on Lot 1 from the Anglesea ramp and retaining wall, parts of the Anglesea land development works, must always have been obvious from the development application for the works including the ramp and no other driveway entrance to the building from Anglesea Street.

The Form of Final Orders

126. The Court has decided that relief should be granted. But in the event that the Court reached this conclusion, the parties debated the final form of orders that should be made. The Court has mostly resolved those disputes about the form of orders. This section discusses briefly the reasons for reaching the conclusions that it did on these various debates and gives guidance as to how the balance should be resolved. These debates concerned a range of subject matters which are identified below without referring to particular order numbers. But the orders to which they relate will be evident upon perusal of the Court’s final orders. Some of the orders that the plaintiffs sought were omitted in the final relief the Court has formulated, and the reasons for that omission are explained here as well.

127. On the last day of the hearing, the plaintiffs and defendants each handed up opposing sets of short minutes of order. Although the parties advanced competing submissions as to what orders should and should not be made, a number of the proposed orders were not contested and were similar in substance. The orders sought, and the parties’ submissions in respect of each of them, are set out below. The Court’s analysis below proceeds mainly on the form of the plaintiff’s proposed orders, the detail of which provided a reasonable degree of precision for the benefit of both parties.

128. Many of the orders made below require work to be done on the driveway within varying periods of time of up to 30 days, after the orders become operative. But the Court is concerned that if it makes these orders, and makes them operative immediately, that there may be insufficient reaction time for both parties to prepare themselves to do the necessary engagement of contractors for the construction work and professional advice that is required. Particularly when it comes to issues such as signage, some fine decisions may have to be made about the wording of the signage and sufficient time should be allowed for consultation between the parties and professional advice on matters such as this.

129. So, the Court has decided to make orders but to stay them for a period of 6 weeks. This will give all sides an opportunity to become closely acquainted with the final form of orders and to prepare themselves for their implementation. The six week delay period will also give the parties an opportunity to see whether any fine tuning to the orders needs to take place, an approach the Court foreshadowed in final submissions. And liberty to apply for that purpose is granted.

130. The suite of orders made in this case is more prescriptive than in most cases of this kind. But in my view, the somewhat unusual circumstances of this case warrant an approach that implements much of what was agreed between the parties but not all the relief that the plaintiffs sought. The orders have been crafted to comply with the principle that, due to the seriousness of the consequences of a breach, the language of an injunction must render quite plain what it permits, what it prohibits and what it requires: Animal Liberation (Vic) Inc v Gasser [1991] 1 VR 51, at 56; (1990) Aust Torts Reports 81-027.

131. And for the reasons discussed below, the full financial burden of the terms on which relief should be granted is still to be settled; the Court has declined to structure the orders on the basis that they are all to be carried out at the cost of the defendants. And the precise combination of orders the Court is proposing may need to be adjusted, before each of the orders become operative.

132. Amending the Misdescription of the Easement. Order 1 sought by the plaintiffs is that the instrument registered on 27 April 2006, in respect of Deposited Plan 1094020, be rectified by replacing the words “Right of Carriageway 2.5m wide” with “Right of Carriageway Variable Width”. The defendants do not oppose the making of this order. The defendants indicated in closing submissions that order represents an outcome which will be of utility to both sides in the dispute. The Court will make this declaration.

133. The Painted White Lines Marking the Boundaries of the Easement. It is agreed that the existing painted white line on the southern boundary is in the incorrect place. The existing white line needs to be obscured and then painted over with a line indicating the correct boundary of the easement. The re-marking of that boundary in its correct position should not be difficult. Competing forms of orders were advanced to order this work to be carried out. The Court prefers the plaintiffs’ version of this order, as it provides for both marking the northern boundary and remarking the southern boundary of Easement A, both of which are necessary.

134. The defendants have complained that occasionally a car will cross over the white line and trespass upon the first defendants’ property. The difficulty with that submission is that the southern white line is not the boundary of the easement. It is difficult to know whether cars have in fact trespassed upon the first defendants’ land because of the incorrect placement of this white line, but the Court finds some trespasses based on video evidence. An advantage of putting the white line in the correct place is that any future contentions of trespass will be able to be far more easily determined, particularly as there (see below) will soon be a regime for the exchange of video information from the driveway area.

135. The Hollyoak Recommendations. A substantial degree of consensus developed between the parties, about the recommendations in Annexure D to Mr Ken Hollyoak’s expert traffic report dated 29 June 2018. Mr Hollyoak’s recommendations represent a series of sensible measures to slow down and control traffic within the easement, which will markedly reduce the safety risks presented by the easement. In my view, all Mr Hollyoak’s recommendations should be adopted. There was little disagreement about this between the parties. The plaintiffs’ proposed period of 30 days for implementation of these recommendations is reasonable and has been adopted.

136. Loading/Unloading Signs. One of the plaintiffs’ important complaints is the time during which trucks take to load and unload goods into OBK at the bottom of the driveway. The Court has found that it is a genuine complaint and the trucks parked there have obstructed Easement B from which the plaintiffs benefit. In my view, the bare minimum solution for this obstruction is the erection of a “loading/unloading zone” sign, warning that a limited period of 15 minutes is available for unloading. The erection of this signage will have the advantage of allowing the defendants’ servants and agents to point out to any truck drivers that there is a limit on the time they have to stop to unload. It will also give occupants of the plaintiffs’ property a basis to move truck drivers along.

137. But so far as actual waiting times for loading and unloading are concerned, the Court is reluctant to do more than order the erection of this sign. The plaintiffs wanted to impose a requirement that if a vehicle needed to stop for longer than 15 minutes then the defendants would be required to seek and obtain the prior consent of the plaintiffs, which should not be unreasonably withheld. There are great difficulties in setting up such a regime. What happens if a person in authority from the plaintiffs cannot be found? The Court cannot grant time-based injunctions that require the co-operation of unknown truck drivers who may use the driveway from time to time; the only conduct the Court can directly control is that of the plaintiffs and the defendants, their servants and agents. In my view, it places too much of a burden upon the staff of the defendants to have to seek permission from the plaintiffs every time a lorry is unloading for more than 15 minutes. And there will be circumstances in which some trucks will need to take more than 15 minutes, such as the grease trap pump-out truck. And given the infrequency of some types of loading and unloading and the nature of the loads, periods in excess of 15 minutes may nevertheless be reasonable. Being too prescriptive about issues such as this can create its own difficulties, leading to constant administration of the Court’s orders. So the Court has declined to implement this part of the orders requested by the plaintiffs.

138. Times of the Day for Unloading. The plaintiffs’ seek the making of orders to govern the time of day for unloading goods. The defendants say that this is officious intermeddling, as the Court’s orders should be directed to addressing a particular excessive use that the evidence identifies as having occurred. The defendants submit that the plaintiffs have not established that there has been unreasonable or excessive use of the easement by the timing of deliveries.

139. But this order, or something close to it, should be made for several reasons. This is necessary, in my view, to reduce the possibility of conflict on the easement and the plaintiffs’ residents encountering occasions of excessive use of Easement A or substantial interference with Easement B. One of the situations of excessive use/substantial interference is the parking of delivery trucks that block the garage entrance to Stage One. Restricting the hours between 9.30am and 11.30am (or some other well defined period, possibly including part of the afternoon) means that the occupants of the plaintiffs’ property will know at what times the driveway is at higher risk of blockage and to avoid those times. The time suggested, and any wider time agreed, can be set outside peak school drop off and collection hours.

140. The proposal, in my view, is reasonable and not likely to produce too much inconvenience. It is qualified by the words, “wherever possible”. It is a matter for the parties, but other forms of words could be used instead of “will ensure that wherever possible” it could be said, perhaps more accurately, that the defendants “will undertake their best endeavours to ensure that”. If the parties prefer the alternative formulation, they can adjust these orders.

141. Mr Walton SC indicated that the plaintiffs were not inflexible about those hours and stated that these hours were chosen because of the reduced likelihood of there being pedestrians on the driveway. If the defendants wish to change the hours in some way, they can propose alternatives during the stay period.

142. A Painted Loading Point. Part of the dispute in this case is provoked by the fact that it is very difficult to see on the ground of the driveway the position of Easement A and Easement B. The parties and their guests/invitees do not know the best location within Easement B for a truck servicing the first Karimbla’s property to park, causing the minimum inconvenience to vehicles exiting the plaintiffs’ property. This can be cured by clearly marking a stopping bay on the surface of the driveway on Easement B. This useful idea emerged during the expert evidence. And Easement A may need to be included in the stopping bay to cover larger vehicles. It will assist the defendants to know where to direct their truck drivers. And it will assist the plaintiffs in making it more probable that parked truck drivers will keep to the right side of the driveway, and are more likely to allow traffic clearance.

143. This order is an example of one of the orders in which the parties are required to mark an “agreed location” on the driveway. If, for some reason, the parties cannot agree upon the location for this box, then the Court will determine it. The orders made below contain a provision which allows any dispute arising out of the orders, where the parties have been directed to reach agreement and failed to do so, to be referred to the Court for resolution.

144. The plaintiff’s formulation of the order contains the words “substantially interfering with vehicles”. But the real idea, as the defendants point out, in conformity with the words of the easement is to “cause minimum inconvenience” on Easement A; and the parties should able to agree on slightly different wording to reflect this.

145. Multiple Vehicles in the Easement. There was a strong disagreement between the parties as to whether more than one vehicle should be permitted to be in the easement at the one time. It is to be remembered that usage of Easement A by the defendants requires vehicles to go in and out of Flood Street, Bondi; there is no through traffic possible to Anglesea Street, Bondi. Thus, if more than one vehicle is in the easement, the vehicle closest to Flood Street, Bondi will block the exit of the other vehicle further away from Flood Street, thus increasing the time that the latter vehicle would be stopped in the easement and likely to cause an obstruction.

146. This is an area, in my view, where it is desirable for there to be a very clear set of rules to avoid excessive user. The defendants contended that if “vehicle” were defined as a ‘truck” this would be unobjectionable. But the distinction between trucks and cars can be blurred. A clear rule would need to cover both. More than one vehicle at the time, whether it be a truck or a car, so increases the risk of obstruction to the easement that there is a case for it being restrained. Any more complicated rules about the size of vehicles in the easement become difficult to follow, remember and enforce. For this reason, the plaintiffs’ proposal that only one vehicle will use Easement A at any single time is reasonable.

147. The remaining doubt the Court has about the form of this order, is whether the appropriate command is “will ensure” or “make reasonable endeavours to ensure”. In my view, the latter is not unreasonable as it means the occasional necessitous situation will not be a breach of the orders. The parties can look at this. And the Court will eliminate “invitees” from the orders if the parties confirm agreement as to that: which seemed to be the case at the hearing.

148. The next few orders relate to the entry of heavy vehicles over the easements. Before the detail of these orders is discussed, some general observations are appropriate.

149. Heavy Vehicle Access – General Observations. The question of what relief should be given about heavy vehicular access on the easements requires special consideration. As was said above, the topography of Easement A that allows Anglesea residents access to the easement, also denied Karimbla the option of loading/unloading off the easement. But the advantage of heavy vehicle manoeuvre is the main opportunity denied to Karimbla, by the current topography of Easement A. The terms of any well-moulded relief against Australian Unity Aurora, or the other plaintiffs for that matter, must recognise this interrelationship.

150. In moulding that relief, the Court will not grant relief regulating heavy vehicle access at the sole expense of the defendants, as the plaintiffs have requested. That would not be commensurate with the practical and economic advantages that Anglesea gains from the current topography. In my view, in well-moulded relief, a plaintiff, who obtains relief that places specific additional duties on the defendants in relation to the supervision of certain vehicles or activities that is not specifically required by the terms of the easement, may have to contribute to the cost of executing those additional duties, otherwise the Court will be reluctant to impose them.

151. But for practical reasons, operation of these vehicles must be under the full control of the defendants, who manage the operation of OBK on a daily basis. Forcing a regime on the parties in which the plaintiffs, for example, had to supply traffic control personnel for the defendants’ operations is likely to create an additional level of joint operational management between these parties that is fraught with the risk of miscommunication, leading to failure and further disputes, and thereby drawing the Court into closer supervision of the result. The Court will only rarely make orders that require constant supervision by the Court: Dalgety Wine Estates Proprietary Limited v Rizzon (1979) 141 CLR 552, at 574; (1979) 26 ALR 355.

126. Money is the simplest medium of exchange to have the plaintiffs contribute to the kind of prescriptive solutions the plaintiffs are seeking. What is an appropriate measure of compensation to be paid to the defendants for having to undertake the measures required by these orders?

127. That question is answered by analysing the parts of the burden on the defendants of the relief to be granted against them, which is at least partly occasioned by the topography of the Anglesea ramp and retaining wall. The loading and unloading operations on Easement A to service OBK, and the use of garbage trucks up and down the easement, are the activities where the Anglesea ramp and retaining wall have a continuing effect on the formulation of relief against the defendants. These Anglesea land-related structures do not obviously have any impact upon pedestrian use of the easement, or upon measures to improve pedestrian safety on Flood Street, or upon trespassing onto the plaintiffs land, or upon other similar matters.

128. The relief the Court has formulated involves the possibility of additional supervision for trucks being loaded and unloaded and for garbage collection using the easement. In my view, if these additional measures are going to be imposed, the plaintiffs should make some contribution to them.

129. The parties have not had an opportunity to put submissions about what that contribution should be. The Court might deny procedural fairness to the parties if it now simply fixes a contribution without hearing further submissions. And the plaintiffs may not wish to pursue this aspect of final relief further, upon the terms of making a financial contribution. So the Court reserves this matter for further consideration but making it clear that nil contribution is not an option that the Court is considering. Some contribution is appropriate as a term of the grant of relief.

130. At this point one aside is necessary. In the reasons below, the Court considers in relation to the cross-claim, whether or not a declaration should be made about the right of residents of the Anglesea land to use Easement B. The plaintiffs have conceded that they have no such right and therefore their continued use of Easement B may be trespass, although they deny any trespass is proven to have occurred and the Court agrees that the evidence of trespass is insufficient. But the repainting of lines and future video surveillance of the area will resolve any uncertainty about proof of trespass by Anglesea residents continuing to use Easement B. Consideration should also be given whether or not one of the terms of the grant of relief here should be that an appropriate license fee be fixed for that activity to continue. This issue should be considered on the basis that trespassing traffic from the Anglesea land contributes to the burden on the defendant of managing loading and unloading on the easement and its deployment of garbage trucks. Again this was not a matter addressed in the parties’ submissions, so it too will be reserved for further consideration.

131. Garbage Trucks. The plaintiffs sought a total prohibition upon the entry of garbage trucks into the driveway. They argued that it was not unreasonable for the defendants to have to take their garbage up to the street and have it collected by garbage trucks outside. The defendants insisted that the garbage trucks should be able to come down and collect the garbage, particularly from OBK. The plaintiffs sought a complete restraint on any use of the driveway for garbage trucks.

132. The restraint the plaintiffs seek against garbage trucks is unreasonable in the circumstances. The Court is not persuaded that such injunctive relief should be granted. There are several reasons for this. First, the driveway is quite steep and the number of garbage bins is such that a substantial program of manhandling garbage bins would be required to meet the first defendant’s total needs. One of the important services that this easement provides to the defendants is to allow the vacation of this kind of rubbish by vehicle. Vehicular vacation of the rubbish directly from the bays at the rear of Lot 1 is likely to reduce the health and security hazards and aesthetic detriments of the garbage bins remaining on the street for lengthy periods. Given that the first defendant’s property operates as a school and synagogue with a reasonably narrow frontage, forcing the first defendant to place garbage bins out there for any length of time is quite unfitting and an unreasonable burden on the defendants.

133. [Redacted]

134. The Court is not prepared to grant this aspect of the orders sought. Garbage trucks can enter in whatever way is most suitable for garbage removal, either forward or in reverse. The Court’s flexibility about this issue is also partly based on the limited options that Karimbla now has at the rear of Lot 1 for garbage trucks to turn.

135. Size of Garbage trucks and other Trucks. But another question remains about limits on the size of garbage trucks and other trucks that can use the easement which was not resolved at the hearing. No evidence was led about the subject, so the Court has declined to determine it. The plaintiffs suggested that smaller garbage trucks (under two tonnes) could accommodate the defendants’ needs. The defendants said it needed trucks of three tonnes. The Court will determine this issue, if it must, upon further evidence and further consideration is reserved, if required.

136. The Court has taken the course of crafting the orders for the present on the basis that garbage trucks of up to two tonnes will be permitted, but the Court will hear argument about whether or not it is impossible for the defendants to procure a contract to empty these garbage bins with trucks of less than three tonnes. This is an area in which the Court’s orders may need to be adjusted before the stay is lifted in the light of further enquiries.

137. In short, the Court is prepared to allow garbage trucks, but wishes to encourage the defendants to use the minimum size of garbage trucks available. But if that is three tonnes, then the Court is still prepared to allow garbage trucks of that size to use the easement given the various other restrictions that have been put in place governing the defendants’ use of the easement. Some flexibility in relation to this point is an essential exercise in balance and reasonableness.

138. Restraints on loading time and traffic controllers. Further restraints, beyond those already mentioned, in relation to the time for loading/unloading of goods, should be carefully scrutinised and the Court is reluctant to impose them except on terms.

139. The Court will not impose the restraint requested, preventing trucks from being in the easement for more than 15 minutes or even a slightly longer period. As earlier indicated, being this prescriptive is a recipe for drawing the Court into continuous subsequent supervision of these orders. There may be circumstances (governed for example by the type of load, the pressing circumstances, the infrequency of the event and the time of day) where a loading/unloading period in excess of 15 minutes is quite reasonable, despite the erection of signs saying 15 minutes.

140. But the Court is prepared to require the defendants to have an accredited traffic controller on the driveway, when vehicles are loading or unloading goods. This seems to be the best way to continue the defendants’ flexible use of Easement A. The plaintiffs said this should be at the defendants’ expense. The defendants said that it should be at the plaintiffs’ expense.

141. In my view, this should be on terms that the plaintiffs are required to contribute to the cost of engaging such a person for the tasks defined. The Court will hear the parties on the extent of the contribution if they cannot agree.

142. Supervising Pedestrians on the Driveway. The Court has left this proposed order in the proposed orders for now, but, if the signs deter inappropriate pedestrian traffic onto Lot 2, the stay on this order may never need to be lifted. It could be left in place with a longer stay period, to see if it was really needed after two years of use of the signs. But an order that the defendants not invite people to trespass on the other side of the driveway is reasonable and not controversial.

143. Pedestrians Staying on Easement A. The Court will not restrain pedestrians using Easement A in the form the defendants propose, “more than is reasonably necessary”. It is not readily enforceable in this form and will lead to endless supervision by the Court.

144. Leaving Waste Bins on Easement A. The Court will make this order. The reference to “invitees” can be eliminated, as that aspect would be impossible to enforce.

145. Other Traffic Features. The traffic experts between them came up with a number of other suggestions about safety and traffic control measures for the easement, a safety mirror on the median strip, bollards and signage to promote greater pedestrian safety. These provisions were essentially uncontroversial in the end and have been included in the orders.

146. The Court anticipates that the accredited traffic controller in this situation could be an employee of the defendants. It is not expected this person will necessarily be some independently contracted costly individual. And it must be remembered that both sides get some benefit from the presence of this person. The plaintiffs’ draft orders said that all of the costs of control/supervision would be laid upon the defendants. The Court has declined to make that order specifically, but has merely ordered the defendants to do certain things. But the Court will hear submissions about the plaintiffs bearing part of the cost of such prescriptive relief, if the stay is to be lifted and it is to operate.

147. Deterring Entry into the Fourth Plaintiff’s Property. The plaintiffs also sought orders for the erection of standard traffic signs advising pedestrians not to enter the section of the driveway that is not the subject of Easement A, that is the northernmost side of the driveway (and marked blue on Exhibit B). The Court will make these orders. There is video evidence of trespass into this area so the measure of increased signage to prevent future trespasses is reasonable. The fourth plaintiff will need to be prepared to mark its own part of the road surface clearly to facilitate the effectiveness of the signs.

148. Restraint upon Entry to the Fourth Plaintiff’s Property. The evidence establishes that there have been trespasses on the fourth plaintiff’s property and a restraint upon their continuation is therefore justified. If signage is erected, as is contemplated by earlier orders, the restraint should be able to be complied with without too much difficulty.

149. Written Notification to Parties. The plaintiffs wanted orders for the defendants to notify all their invitees of the requirements of these orders. The defendants wanted clarity as to the form of the notification that was required. That, in my view, is an unreasonable burden to place upon the defendants and the Court declines to do so. The burden of these orders upon the defendants is already not insignificant. But once the orders are being performed, knowledge of their operation will become more widespread in the communities served by the defendants. The orders themselves contain a strong incentive for the defendants to inform their communities about the orders.

150. Video Evidence. The easements on the driveway are unusual in that they are scrutinised by a number of security cameras located on the walls of both the plaintiffs’ property and the first defendant’s property. These video cameras survey most parts of the driveway and consequently provide an irrefutable record of who was on the driveway and when. And the Court has seen the excellent evidence in the form of the many videos taken by these cameras.

151. The Court suggested, and the parties embraced, the idea of exchanging the video files taken by these cameras over the driveway. The Court had in mind a mutual regime of exchange of video files from these cameras. A mutual regime is one that is likely to encourage mutual compliance because of the transparency involved. But the regime will not be permanent. That would be too onerous. The issues between these parties should settle down after about two years of operation of these orders. So the Court has formulated the orders to sunset the video exchange regime two years after the orders become operative. The videos must be kept confidential and will only be able to be used by either party for the purposes of enforcement of these orders, including for the pursuit of any consequential trespass actions, should that be required.

152. The parties are at issue as to the costs of this exercise. Shared live streaming was suggested as an essentially cost free option. If the parties cannot agree on this, the Court will reserve further consideration and will resolve their differences.

153. In summary, the matters discussed here represent what the Court regards as a regime allowing reasonable user of these easements within their terms.

154. Orders inter partes only; not a term of the Easements. The orders made here are only made inter partes. They will not become terms of either Easement A or Easement B. There are many examples in the cases of the courts merely granting relief without incorporating the terms of relief into the registered easement, in the expectation that in future relations between the adjoining owners will be better: Hare, (at [34]).

155. But should either party seek such orders, they should be applied for later separately by motion once the parties have a better understanding of how the regime created by these orders works in practice. But there will need to be a time limit on this (say) of two years, otherwise separate proceedings will have to be commenced for this purpose. This issue was discussed in final submissions but there is no need to reserve further the consideration of it, because it is not presently before the Court for determination.

156. The Cross-Claim. The defendant’s cross-claim seeks declarations (a) that the Anglesea land has no easement over Lot 1 (the pink area in Exhibit B); and (b) that easement B, which benefits Lot 2, cannot be used to benefit the Anglesea land. The plaintiffs conceded both issues just before the proceedings commenced. Before that they were in contest, a matter which may go to the question of the costs incurred on the cross-claim.

157. The plaintiffs correctly made these concessions. But they were made fairly late. The Anglesea land never had any proper claim to an easement over Lot 1. And Easement B only benefits Lot 2, so it could not be used to benefit a third party, such as an occupier of the Anglesea land, who might get access to easement B through the co-operation of Lot 2: see Laris v Lin, (at [87] – [93]).

158. The plaintiffs say that, as the point has been conceded, these declarations are now unnecessary. But as Mr Lawrance points out in final submissions, the concessions were only made after the defendants were required to bring the cross-claim to quell the dispute about those very issues. The plaintiffs’ September 2017 statement of claim asserted an easement over Lot 1 in favour of LMA. When the first defendant wrote to the plaintiffs on 22 September 2017, pointing out that LMA held no easement over Lot 1 and required residents exiting the Anglesea car park to keep off Lot 1, the plaintiffs replied on 28 September 2017 asserting that “an equitable easement exists” over Lot 1 in favour of LMA, and rejecting the defendants’ demand.

159. Anglesea land residents have continued to drive onto Easement B on Lot 1 as they exit the car park of their property. Ms Malouf’s affidavit, and analysis of the video evidence, demonstrates that this is probable, even though the painted lines on the road surface showing Easement B are incorrectly located. On 31 October 2017 the plaintiffs’ Amended Statement of Claim asserted that Easement B (which favours Lot 2 and not the Anglesea land) entitled Anglesea residents to drive onto Lot 1. It was in response to this that the defendants’ cross-claim was filed on 20 December 2017. The hearing took place in July 2018. The point was conceded one business day before the trial commenced.

160. Mr Lawrance submits that capitulation on a point at the 11th hour is not a reason for the Court to decline to make a declaration. Mr Walton SC says the point is a longer an issue. But the point having been asserted right up to trial, it could be revived in the future if a declaration were not made. The Court’s overall objective in a proceeding such as this is to quell the dispute. Making the declaration sought is more likely to achieve that outcome.

161. But declarations to the effect sought in the cross-claim have not been included the current form of final orders. If now, after seeing this judgment, the defendants/cross-claimants still seek for those declarations to be made, then the Court will make them in the form sought in the cross-claim, unless the defendants/cross-claimants indicate otherwise. If the defendants/cross-claimants wish the declarations to be differently formulated, they should provide their new formulations to the plaintiffs and to the Court before the matter returns to Court for supplementary arguments.

162. The residents of the Anglesea land have been trespassing on Lot 1. Trespass is actionable per se. So prima facie the first defendant has an entitlement to damages for these trespasses. But the frequency and duration of these trespasses has not been the subject of examination in this hearing. The defendants have indicated they will only press that claim in so far as the plaintiffs presently press any claim for damages, so the two claims may perhaps be set off. The Court reserves for further consideration the first defendant’s claim for damages for these trespasses should it be required.

Conclusions and Orders

189. For these reasons the Court makes the following declarations, orders and directions:

1. The Court ORDERS that the instrument registered on 27 April 2006 pursuant to s 88B of the Conveyancing Act 1919 in respect of Deposited Plan 1094020 be rectified by, on its second page, replacing the words "Right of Carriageway 2.5m wide" with "Right of Carriageway Variable Width".

2. ORDER that the defendants:

1. within 14 days of the date of first operation of these Orders, will engage a suitably qualified professional (as directed by a registered surveyor) to mark (with paint suitable for road marking) the northern boundary and re-mark the southern boundary in its correct position of the Right of Carriageway marked "A" in Deposited Plan 1094020 (referred to as “Easement A” in these orders) and this order shall be executed by the existing painted white line on the private driveway situated on Lot 1 in DP1094020 and Lot 2 in DP1094020 (referred to as “the driveway” in these orders) being removed or painted over by the defendants so as to render it not clearly visible to users of the driveway;

2. within 30 days of the date of first operation of these Orders, will implement the recommendations in Annexure D of the Expert Traffic Report prepared by Mr Ken Hollyoak dated 29 June 2018 provided that the profile line identified in the said Annexure D must be applied at the correct southern boundary of Easement A, rather than in the current position of the existing painted white line on the driveway;

3. within 30 days of the date of first operation of these Orders, will erect a Loading/Unloading Zone sign that states that loading/unloading from the driveway into the First Defendant's property, located at 36 Flood Street, Bondi and otherwise known as Lot 1 in Deposited Plan 1094020 (referred to as “the First Defendant's Property” in these orders) must be completed within 15 minutes;

4. will ensure that wherever possible loading/unloading of goods to the First Defendant's Property occurs between the hours of 9.30am and 11.30am;

1. within 30 days of the date of first operation of these Orders, will engage two suitably qualified experts to determine the exact dimensions and location within the Right of Carriageway marked "B" in Deposited Plan 1094020 (referred to as “Easement B” in these orders) and, so far as is necessary, Easement A, where one vehicle can load and unload goods from the driveway into the First Defendant's Property without substantially interfering with vehicles exiting either of the two car parks located on the Fourth Plaintiff’s properties, and then mark (with paint suitable for road marking) a painted box on the driveway setting out that agreed location;

2. will ensure that no more than one vehicle driven by themselves, their employees, invitees or agents will enter upon and use Easement A at any single time;

3. will ensure that an accredited traffic controller wearing suitable high visibility clothing as required is present at all times to assist: (1) when a truck (defined for the purposes of these orders as a vehicle of over 2 tonnes capacity) is reversing down the driveway to load or unload using any part of Easement A; and (2) when vehicles are loading or unloading goods from the driveway into the First Defendant's Property;

4. within 30 days of the date of first operation of these Orders, but subject to Council approval if such approval is required, will erect: (1) a safety mirror on the median strip in front of the First Defendant's Property on the southern side of the driveway; (2) a bollard that answers the description of the bollard recommended by Mr Ken Hollyoak, and (3) standard traffic signage warning vehicles to watch for pedestrians on the median strips located on both the southern and northern sides of the driveway; and

5. within 30 days of the date of first operation of these Orders, will display a standard traffic sign on the First Defendant's Property (on the western end of the southern side of the driveway) advising pedestrians substantially to the effect that they must not enter the section of driveway located at 24-32 Flood Street, Bondi, and otherwise known as Lot 2 in Deposited Plan 1094020 (referred to as “the Fourth Plaintiff's Property” in these orders) that is not the subject of Easement A, and will not invite pedestrians to access the premises on the defendant’s property known as “Our Big Kitchen” by means of the driveway, without also requiring that at least one person with suitable traffic management training is present to supervise those pedestrians whilst they are on the driveway.

3. The defendants by themselves, their employees and agents are restrained from using or trespassing, on that part of the driveway on the Fourth Plaintiff's Property that is not the subject of Easement A.

4. Subject to Order 5, each party (described for the purposes of this and the next order as “the giving party”) will itself or through its servants or agents provide to the other party (described for the purposes of this and the next order as “the receiving party”) at fortnightly (or monthly if so agreed in writing by the parties) intervals for a period of two years from the date of these orders, all the video files generated by the giving party’s security cameras located on the giving party’s property and covering the driveway visually, provided that such video files must not be viewed by any person other than the officers, employees, solicitors, or barristers of the receiving party, and the receiving party shall return the said video files to the giving party within four working days of delivery to the receiving party.

5. Without leave of the Court the receiving party may not retain and use copies of the videos produced pursuant to Order 4 other than for the purpose of the enforcement of these orders.

6. The defendants and each of them, by themselves, their employees, invitees and agents are restrained from leaving waste bins on Easement A and leaving or placing waste bins on that part of the driveway on the Fourth Plaintiff's Property that is not the subject of Easement A.

7. Stay Orders 1 to 6 above for a period of approximately six weeks to 5.00pm on Monday, 15 July 2019, during which period the Court will hear any application to adjust the precise form of these orders.

8. Reserve all questions of the costs of and associated with the proceedings.

9. Direct the parties to bring in Short Minutes of Order to give any further effect to these reasons, including in relation to the Cross Claim.

10. Grant liberty to apply in relation to both the form and the implementation of these orders.

11. Note that to the extent that these orders expressly or impliedly direct that the parties should agree upon any matter in order to implement any part of these orders and if the parties cannot agree as directed, then in default of agreement the Court will determine the matter in question and the Court reserves for further consideration any such issue.

12. Otherwise reserve for further consideration all matters on the Claim and the Cross Claim stated in these reasons to be reserved for further consideration.

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Amendments

14 August 2019 - coversheet and [6] : "KLC" changed to "KCL"

Decision last updated: 14 August 2019