Averono v Mbuzi - [2005] QSC 61

SUPREME COURT OF QUEENSLAND

CITATION:

Averono & Anor v Mbuzi & Anor [2005] QSC 61

PARTIES:

MARCO ADAMO AVERONO & ANNABEL LOUISE AVERONO
(applicants)
v
JOSIYAS ZIFNANA MBUZI & VAINESS BANDA MBUZI
(respondents)

FILE NO/S:

BS10869 of 2004

DIVISION:

Trial Division

PROCEEDING:

Originating application

DELIVERED ON:

31 March 2005

DELIVERED AT:

Brisbane

HEARING DATE:

23 March 2005

JUDGE:

Mullins J

ORDER:

1.    The interlocutory injunction ordered by Muir J on 15 February 2005 is discharged.

2.    The amended originating application is dismissed.

3.    The application filed on 1 March 2005 is dismissed.
4.    The application filed on 16 March 2005 is dismissed.

CATCHWORDS:

REAL PROPERTY – EASEMENTS – PARTICULAR EASEMENTS AND RIGHTS – RIGHTS OF WAY – OBSTRUCTION – where applicant granted right of way by respondent pursuant to a registered easement – where respondent removed bitumen from part of driveway on servient tenement – where driveway remains traversable – whether amounts to a substantial interference with the enjoyment of the right of way.

Petty v Parsons [1914] 2 Ch 653
Powell v Langdon (1944) 45 SR(NSW) 136
Saggers v Brown (1981) 2 BPR 9329

COUNSEL:

A J Taylor for the applicants
The male respondent appeared in person on behalf of the respondents

SOLICITORS:

David Colwell & Company for the applicants
The respondents appeared in person

MULLINS J: This proceeding was commenced by the applicants who own Lot 31 on SP112285 (“Lot 31”) filing an originating application on 13 December 2004 seeking injunctions against the respondents who own the adjoining parcel Lot 32 on SP112285 (“Lot 32”) in respect of activities that would interfere with the applicants’ rights granted pursuant to registered Easements Nos 702880330 (“Easement 330”) and 702880356 (“Easement 356”). The respondents made a cross application seeking extinguishment of Easement 356 pursuant to s 181 of the Property Law Act 1974. Those applications were heard by Muir J who published reasons and made orders on 21 January 2005: Averono & Anor v Mbuzi & Anor [2005] QSC 6 (“the reasons”).

Muir J dismissed the application for extinguishment of Easement 356, but did not grant the injunctive relief sought by the applicants on the basis that the evidence did not disclose that the respondents were likely to act unlawfully. The injunctions sought by the applicants were set out in paragraphs 1, 2 and 3 of the originating application in the following terms:

“1.An injunction restraining the respondents whether by themselves, their servants or agents or contractors from interfering with the applicants’ use of or rights granted pursuant to registered Easements Nos 702880330 and
702880356.
2.An injunction restraining the respondents whether by themselves, their servants or agents or contractors from removing the bitumen on that portion of registered Easement No 702880330 located on Lot 32 SP 112285, County of Stanley, Parish of Warner, Title Reference 50234937.
3.An injunction restraining the respondents whether by themselves, their servants or agents or contractors from erecting a fence on registered Easement No 702880330 at the boundary of Lots 31 and 32 on SP 112285, County…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2005] QSC 61
Decision Date: 31 March 2005

CaseChat Overview and Summary

Averono brought an action against Mbuzi regarding an alleged obstruction to a right of way over Mbuzi's property. The dispute originated from a registered easement that granted Averono a right of way over part of Mbuzi's property. Mbuzi had removed bitumen from a section of the driveway on the servient tenement, which Averono claimed substantially interfered with the easement's use. Averono sought an interlocutory injunction and damages in the Supreme Court of Queensland.

The court needed to determine whether the removal of bitumen by Mbuzi constituted a substantial interference with Averono's right of way, warranting an injunction. The court also needed to assess whether the remaining driveway, albeit without bitumen, still allowed for the reasonable use of the easement by Averono. The central issue was whether the obstruction created by Mbuzi's actions was significant enough to warrant legal intervention.

The court found that although the removal of bitumen was an alteration to the servient tenement, the driveway remained traversable, and the easement could still be reasonably used by Averono. Consequently, the court concluded that the obstruction did not amount to a substantial interference with the easement. The interlocutory injunction was discharged, and Averono's amended originating application, along with subsequent applications, were dismissed. The court held that the actions of Mbuzi did not justify the granting of an injunction or damages to Averono.

Orders

Orders of the court

1. The interlocutory injunction ordered by Muir J on 15 February 2005 is discharged.

2. The amended originating application is dismissed.

3. The application filed on 1 March 2005 is dismissed.

4. The application filed on 16 March 2005 is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Averono & Anor v Mbuzi & Anor [2005] QSC 61
PARTIES:	MARCO ADAMO AVERONO & ANNABEL LOUISE AVERONO (applicants) v JOSIYAS ZIFNANA MBUZI & VAINESS BANDA MBUZI (respondents)
FILE NO/S:	BS10869 of 2004
DIVISION:	Trial Division
PROCEEDING:	Originating application
DELIVERED ON:	31 March 2005
DELIVERED AT:	Brisbane
HEARING DATE:	23 March 2005
JUDGE:	Mullins J
ORDER:	1. The interlocutory injunction ordered by Muir J on 15 February 2005 is discharged. 2. The amended originating application is dismissed. 3. The application filed on 1 March 2005 is dismissed. 4. The application filed on 16 March 2005 is dismissed.
CATCHWORDS:	REAL PROPERTY – EASEMENTS – PARTICULAR EASEMENTS AND RIGHTS – RIGHTS OF WAY – OBSTRUCTION – where applicant granted right of way by respondent pursuant to a registered easement – where respondent removed bitumen from part of driveway on servient tenement – where driveway remains traversable – whether amounts to a substantial interference with the enjoyment of the right of way. Petty v Parsons [1914] 2 Ch 653 Powell v Langdon (1944) 45 SR(NSW) 136 Saggers v Brown (1981) 2 BPR 9329
COUNSEL:	A J Taylor for the applicants The male respondent appeared in person on behalf of the respondents
SOLICITORS:	David Colwell & Company for the applicants The respondents appeared in person