A Bradbrook and S MacCallum, Bradbrook and Neave’s Easements and Restrictive Covenants (LexisNexis, 3rd ed, 2010)
Gale on Easements: (Thomson Reuters, 21ST Edition, 2020)
Category:
Principal judgment
Parties:
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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AGLC
Barter v Theunissen [2024] NSWSC 326
Case
[2024] NSWSC 326
Decision Date
CaseChat Overview and Summary
Barter v Theunissen was a case involving a dispute over the creation and use of an easement on land. The plaintiff, Barter, sought to enforce the terms of an easement over the defendant's property, Theunissen. The dispute was heard by the Supreme Court of New South Wales. Barter claimed that Theunissen had substantially interfered with the easement, preventing access to a neighbouring property.
The primary legal issue before the court was whether the easement had been properly created and whether Theunissen had acted in a way that substantially interfered with the easement. Specifically, the court had to determine whether the easement was an express grant, and if so, whether the interference amounted to a substantial interference that would breach the terms of the easement. The court also needed to examine the general principles of construction to interpret the terms of the easement.
The court found that the easement was indeed an express grant, clearly outlined in the relevant property documents. However, the court also determined that Theunissen's actions constituted a substantial interference with the easement. The court considered the nature of the easement, the extent of the interference, and the purpose for which the easement was created. Given these factors, the court concluded that Theunissen's interference was not merely trivial but significantly impacted Barter's rights under the easement. The court ordered Theunissen to cease the interference and to allow Barter to use the easement in accordance with its original terms.