Averono v Mbuzi - [2005] QSC 6

SUPREME COURT OF QUEENSLAND

CITATION:

Averono & Anor v Mbuzi & Anor [2005] QSC 006

PARTIES:

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

FILE NO/S:

BS10869/04

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court, Brisbane

DELIVERED ON:

21 January 2005

DELIVERED AT:

Brisbane

HEARING DATE:

20 January 2005

JUDGE:

Muir J

ORDER:

1. The application for extinguishment of the easement be dismissed.
2. The respondents pay the applicants’ costs of and incidental to the applications for injunction and extinguishment of Easement E to be assessed on the standard basis excluding the applicants’ costs of the hearing on 22 December 2004.
3. There be liberty to apply within 14 days of today’s date with respect to the order for costs.

CATCHWORDS:

REAL PROPERTY – EASEMENTS – ABANDONEMENT, SUSPENSION OR EXTINGUISHMENT – EXTINGUISHMENT – where both the applicants and respondents have an easement over the others land for the purpose of a shared driveway – where applicants have refused offer to extinguish easement – whether Court’s discretion should be exercised to extinguish easement – whether easement obsolete - whether the continued existence of the easement impedes reasonable user of the easement land – whether the extinguishment of the easement will not substantially harm the respondents

EQUITY – EQUITABLE REMEDIES – INJUNCTIONS FOR PARTICULAR PURPOSES –TO RESTRAIN BREACH OF STATUTES, REGULATIONS OR ORDINANCES – LOCAL GOVERNMENT PROVISIONS – where the applicants sought to restrain the respondents from interfering with the applicants’ use of rights granted pursuant to an easement over their land

Property Law Act 1974, s 181

A-G ex rel Whitten v Shire of Gisborne (1983) 45 LGRA 1
C. Hunton Ltd v Swire [1969] NZLR 232
Cachia v Hanes (1994) 179 CLR 403
Hoy v Atherton (2002) Q ConvR 54-559
Re Eddowes v Proprietors ‘Maricopa’ [1991] 2 Qd R 381
Re Mason and the Conveyancing Act (1960) 78 WN (NSW) 925
Re Truman, Hanbury, Buxton and Co Ltd’s Application [1956] 1 QB 261
Webster v Bradac [1994] ANZ ConvR 260

COUNSEL:

P Favell for the applicants

SOLICITORS:

David Colwell & Company for the applicants
The respondents in person

oductionIntr

By originating application filed on 13 December 2004 the applicants sought, amongst other relief, an injunction restraining the respondents from interfering with the rights of the applicant pursuant to registered Easements 702880330 and 702880356. They also sought injunctions restraining the respondents from removing bitumen from the land the subject of Easement No 702880330 and from erecting a fence on that land. On 21 December 2004 the respondents filed their own application in which they sought an order that Easement No 702880341 be cancelled pursuant to s 181 of the Property Law Act 1974 (“the Act”). The application was amended subsequently to refer to Easement No 702880356.

General description of Easement E and associated real property boundaries and interests

The applicants and the respondents are neighbours. The applicants are the registered proprietors of Lot 31 on Registered Plan SP112285. It is…

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.

Keep reading for free

Create a free CaseChat account to read Averono v Mbuzi and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2005] QSC 6
Decision Date: 21 January 2005

CaseChat Overview and Summary

The dispute in Averono v Mbuzi was between Averono and Mbuzi, who held easements over each other's land for a shared driveway. Averono sought to extinguish the easement, which Mbuzi opposed. The matter was heard in the Supreme Court of Victoria. The primary legal issue before the court was whether the easement should be extinguished due to obsolescence or if its continued existence impeded reasonable use of the easement land. Additionally, the court had to determine whether extinguishing the easement would substantially harm Mbuzi.

The court considered whether the easement was obsolete and whether its continued existence impeded reasonable use. It found that the easement was not obsolete as it still served a purpose for access to the properties. The court also concluded that the continued existence of the easement did not impede reasonable use of the easement land. The court found that extinguishing the easement would substantially harm Mbuzi as it would effectively deny them access to their property. Consequently, the court dismissed the application to extinguish the easement.

The court ordered that the application for extinguishment of the easement be dismissed. Furthermore, the respondents were ordered to pay the applicants' costs of and incidental to the applications for injunction and extinguishment of Easement E, to be assessed on the standard basis excluding the applicants' costs of the hearing on 22 December 2004. Lastly, there was liberty to apply within 14 days of the court's date with respect to the order for costs.

Orders

Orders of the court

1. The application for extinguishment of the easement be dismissed.

2. The respondents pay the applicants’ costs of and incidental to the applications for injunction and extinguishment of Easement E to be assessed on the standard basis excluding the applicants’ costs of the hearing on 22 December 2004.

3. There be liberty to apply within 14 days of today’s date with respect to the order for costs.

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 006
PARTIES:	MARCO ADAMO AVERONO & ANNABEL LOUISE AVERONO (applicants) v JOSIYAS ZIFNANA MBUZI & VAINESS BANDA MBUZI (respondents)
FILE NO/S:	BS10869/04
DIVISION:	Trial Division
PROCEEDING:	Trial
ORIGINATING COURT:	Supreme Court, Brisbane
DELIVERED ON:	21 January 2005
DELIVERED AT:	Brisbane
HEARING DATE:	20 January 2005
JUDGE:	Muir J
ORDER:	1. The application for extinguishment of the easement be dismissed. 2. The respondents pay the applicants’ costs of and incidental to the applications for injunction and extinguishment of Easement E to be assessed on the standard basis excluding the applicants’ costs of the hearing on 22 December 2004. 3. There be liberty to apply within 14 days of today’s date with respect to the order for costs.
CATCHWORDS:	REAL PROPERTY – EASEMENTS – ABANDONEMENT, SUSPENSION OR EXTINGUISHMENT – EXTINGUISHMENT – where both the applicants and respondents have an easement over the others land for the purpose of a shared driveway – where applicants have refused offer to extinguish easement – whether Court’s discretion should be exercised to extinguish easement – whether easement obsolete - whether the continued existence of the easement impedes reasonable user of the easement land – whether the extinguishment of the easement will not substantially harm the respondents EQUITY – EQUITABLE REMEDIES – INJUNCTIONS FOR PARTICULAR PURPOSES –TO RESTRAIN BREACH OF STATUTES, REGULATIONS OR ORDINANCES – LOCAL GOVERNMENT PROVISIONS – where the applicants sought to restrain the respondents from interfering with the applicants’ use of rights granted pursuant to an easement over their land Property Law Act 1974, s 181 A-G ex rel Whitten v Shire of Gisborne (1983) 45 LGRA 1 C. Hunton Ltd v Swire [1969] NZLR 232 Cachia v Hanes (1994) 179 CLR 403 Hoy v Atherton (2002) Q ConvR 54-559 Re Eddowes v Proprietors ‘Maricopa’ [1991] 2 Qd R 381 Re Mason and the Conveyancing Act (1960) 78 WN (NSW) 925 Re Truman, Hanbury, Buxton and Co Ltd’s Application [1956] 1 QB 261 Webster v Bradac [1994] ANZ ConvR 260
COUNSEL:	P Favell for the applicants
SOLICITORS:	David Colwell & Company for the applicants The respondents in person