Averono v Mbuzi

Case [2005] QCA 295

SUPREME COURT OF QUEENSLAND

CITATION:

Averono & Anor v Mbuzi & Anor [2005] QCA 295

PARTIES:

MARCO ADAMO AVERONO
ANNABEL LOUISE AVERONO
(applicants/respondents)
v
JOSIYAS ZIFANANA MBUZI
VAINESS BANDA MBUZI
(respondents/appellants)

FILE NO/S:

Appeal No 1254 of 2005
SC No 10869 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

16 August 2005

DELIVERED AT:

Brisbane

HEARING DATE:

15 July 2005

JUDGES:

Williams, Jerrard and Keane JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Appeal dismissed
2. The appellants to pay the respondents' costs of the appeal up to 8 July 2005 with those costs to be assessed on the standard basis

CATCHWORDS:

REAL PROPERTY - EASEMENTS - EASEMENTS GENERALLY - ABANDONMENT, SUSPENSION OR EXTINGUISHMENT - EXTINGUISHMENT - where the appellants and respondents were neighbours owning adjacent blocks of land - where both parties had an easement granting right of way from their land across the land of the other party in order to access nearby streets - where a driveway was located down the middle of the land subject to these two easements - where the appellants asserted a right to place a fence down the middle of this driveway in order to fence their property boundary - where the respondents applied to the primary judge for an injunction restraining the construction of this fence by the appellants - where the appellants applied for the extinguishment of the easement over their land - where the appellants appealed against the decision of the primary judge not to extinguish the easement - whether the appellants had established a case for extinguishing the easement in terms of s 181 Property Law Act 1974 (Qld)

Property Law Act 1974 (Qld), s 181(1)(a), s 181(1)(b),
s 181(1)(d)

Ashoil Holdings Pty Ltd v Fassoulas [2005] NSWCA 80; CA 40616/04, 30 March 2005, cited

Pieper v Edwards [1982] 1 NSWLR 336, cited

Re Eddowes [1991] 2 Qd R 381, applied

Re Mason and the Conveyancing Act [1962] NSWR 762, cited

Re Parimax (SA) Pty Ltd (1954) 72 WN(NSW) 386, applied

Stannard v Issa [1987] AC 175, cited

COUNSEL:

The appellants appeared on their own behalf
The respondents appeared on their own behalf

SOLICITORS:

The appellants appeared on their own behalf
The respondents appeared on their own behalf

  1. WILLIAMS JA:  I have had the advantage of reading the reasons for judgment of Keane JA and agree with all that is said therein.

  1. I would add by way of emphasis that the only question raised by the appeal to this Court was with respect to the extinguishment of the subject easements pursuant to


    s 181 of the Property Law Act 1974 (Qld). The proceedings before Muir J did involve some other disputes between the parties relating to the easements, but those matters appear to have been resolved by the subsequent judgment of Mullins J: Averono v Mbuzi [2005] QSC 061, delivered 31 March…

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AGLC
Averono v Mbuzi [2005] QCA 295
Case
[2005] QCA 295
Decision Date

CaseChat Overview and Summary

The case of Averono v Mbuzi involved a dispute between neighbours, the appellants and respondents, who owned adjacent blocks of land. Both parties held easements granting a right of way across each other's land to access nearby streets. The crux of the dispute centred on the appellants' assertion of a right to place a fence down the middle of this shared driveway to fence their property boundary. The respondents sought an injunction from the primary judge to prevent the appellants from constructing the fence. Conversely, the appellants applied for the easement over their land to be extinguished. The appellants' appeal against the primary judge's decision not to extinguish the easement was heard by the court.

The primary legal issue before the court was whether the appellants had demonstrated grounds for extinguishing the easement under section 181 of the Property Law Act 1974 (Qld). The court needed to determine if the appellants had met the statutory criteria for extinguishment, including whether the easement had been rendered unnecessary or if there had been a substantial change in circumstances that warranted the easement's extinguishment. The court also considered precedent cases, such as Ashoil Holdings Pty Ltd v Fassoulas, Pieper v Edwards, and Re Eddowes, which provided guidance on the principles of easement extinguishment. Additionally, statutory provisions and their interpretation were examined to ascertain whether the appellants' case met the legal standards set forth in the relevant legislation.

The court's reasoning was grounded in established legal principles and case law. The court found that the appellants had not provided sufficient evidence to demonstrate that the easement had been rendered unnecessary or that there had been a substantial change in circumstances that justified extinguishment. The court held that the easement continued to serve a practical purpose and was integral to the access needs of both parties. The primary judge's decision to deny the extinguishment of the easement was upheld, and the appeal was dismissed. Consequently, the court ordered that the appellants were to pay the respondents' costs of the appeal up to 8 July 2005, with those costs to be assessed on the standard basis.

Orders

Orders of the court

1. Appeal dismissed

2. The appellants to pay the respondents' costs of the appeal up to 8 July 2005 with those costs to be assessed on the standard basis

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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