Bergmans v Rant Pty Ltd
[2000] VSC 539
•12 December 2000
| SUPREME COURT OF VICTORIA | |
| PRACTICE COURT | Not Restricted |
No. 6841 of 2000
| JOHANNES WILHELMS BERGMANS & ANOTHER | Plaintiffs |
| v. | |
| RANT PTY. LTD. | Defendant |
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JUDGE: | BEACH, J. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 12 DECEMBER 2000 | |
DATE OF JUDGMENT: | 12 DECEMBER 2000 | |
CASE MAY BE CITED AS: | BERGMANS v. RANT PTY. LTD. | |
MEDIUM NEUTRAL CITATION: | [2000] VSC 539 | |
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CATCHWORDS: Interlocutory Injunction – Defendant hindering access by plaintiffs to their property – Serious issue to be tried – Injunction granted.
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APPEARANCES: | Counsel | Solicitors |
For the Plaintiffs | Mr. S. Newton | Eales & Mackenzie |
| For the Defendant | Mr. J. Tesarsch | Brendan H. Hardiman & Associates |
HIS HONOUR:
The plaintiffs and the defendant are the owners of two properties in Chirnside Park. One property is in Woorarra Court, the other in Yarraview Road. The two properties adjoin each other.
The plaintiffs' property enjoys access to Edwards Road, Chirnside Park, but not to Woorarra Court. The defendant's property, on the other hand, enjoys access to Woorarra Court.
In about 1991 the plaintiffs and the defendant agreed that the defendant would allow the plaintiffs at their own cost to construct a driveway along the northern boundary of the defendant's property, so as to give the plaintiffs access to Woorarra Court. To achieve that purpose, the defendant would transfer a portion of its land to the plaintiffs, that is, the portion of the land on which the driveway was to be constructed, and the plaintiffs would transfer to the defendant a portion of their land not less in size than the land transferred by the defendant to them.
In accordance with the terms of the agreement, the plaintiffs constructed the driveway from their property along the boundary of the defendant's land, thereby giving them access to Woorarra Court.
In the course of doing so, they erected the appropriate new fences, trees were planted, and the driveway was formally constructed. According to the affidavit of the first plaintiff, sworn 3 November 2000, the plaintiffs spent, "Tens of thousands of dollars in carrying out the work".
In March/April 1998 the plaintiffs put their property on the market for sale. When they did so, they found that the legal procedures necessary to carry out the transfers of the two areas of land had not been carried out.
On 29 September 1999, the plaintiffs signed the necessary transfers of the two areas of land and on 1 October the transfers were forwarded to the defendant for execution.
The evidence before me is to the effect that on 8 November 1999 a Director of the defendant, Robert Vernon, went to the office of the plaintiffs' solicitors and executed the transfers on behalf of the defendant. However, soon after he had left the office of the plaintiffs' solicitors, he returned and took the transfers away, maintaining that the land had not been divided up in accordance with the agreement.
A few days later, from recollection, on or about 12 November, the plaintiffs and Vernon agreed to realign the boundaries between the two properties to give the defendant more land. The land was then re-surveyed, at the cost of the plaintiffs, to achieve that end, and in June of 2000 the plaintiffs sent the new transfers to the defendant for execution by it.
However, in July/August 2000, the defendant notified the plaintiffs that it did not intend to proceed with the agreement and, on 14 August, it erected a fence across the entrance to the driveway, thereby blocking the plaintiffs' access to Woorarra Court.
On 14 September 2000, the plaintiff filed a writ in the court whereby it seeks various orders, including an injunction, both interlocutory and permanent, restraining the defendant from maintaining the fence which is obstructing the plaintiffs' access to Woorarra Court.
In an affidavit that he has sworn in opposition to the plaintiff's application, Mr Vernon has said:
"4. That at the time of the purchase I was advised by Case Kuyken, the friend-manager of the plaintiffs in this matter, that a right of carriageway of approximately 10 feet wide existed on the northern boundary of the property that I had purchased giving access to the plaintiffs' land and that it was the only means of access to the plaintiffs' land.
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19. That the plaintiffs in this matter have deliberately acted in a manner to suggest that the driveway land has at all times been owned by the plaintiffs and this has been evidenced by the conduct of their solicitors as is shown by correspondence from Messrs Patrick Hartl & Associates, solicitors acting on behalf of the plaintiffs, dated 9 July 1998, and addressed to me, wherein it is stated that they were acting in relation to the widening of the driveway".
That letter reads:
"We refer to the above matter and confirm that we act on behalf of Mr and Mrs Bergmans of 6/8 Paynes Road, Chirnside Park, in relation to the subdivision and widening of their driveway at 4 Woorarra Court, Chirnside Park. We have had surveyors undertake a survey of which we enclose a copy for your reference. The plans have now gone to the Yarra Ranges Shire Council seeking their approval for the proposal. Upon receipt of that consent, we will require Rant Pty Ltd and/or their mortgagee to make their title available at the Titles Office together with Mr and Mrs Bergman's title so that the changes may be recorded. We will keep you informed but if in the meantime you have any inquiries please do not hesitate to contact Rosanne Mason of our office".
I fail to see myself how anything stated in that letter could be construed as a suggestion that the driveway land has at all times been owned by the plaintiffs. But that, however, is a matter for the trial of this proceeding, not for me to determine upon the hearing of an interlocutory application.
Clearly, there is a serious issue to be tried in the proceeding. As to the balance of convenience, in my opinion, it is substantially in the plaintiffs' favour. Since 1992 they have had access to their property from Woorarra Court via the driveway, a driveway they spent significant money developing and maintaining. On the face of it, the existing driveway caused little inconvenience to the defendant, despite what is now sworn on its behalf by its Director. It was only after the parties had a falling out over the training of a trotter by the Director of the defendant, that trotter being partly owned by the first plaintiff, that the defendant's attitude to the driveway appears to have changed.
In my opinion, the plaintiffs have satisfied the burden which rests upon them of obtaining interlocutory relief in the matter.
Counsel for the plaintiff having given the usual undertaking as to damages on their behalf, I order that, until the final determination of this proceeding, or further order, the defendant, its servants and agents, be restrained from preventing or hindering in any way the plaintiffs, their servants, agents or nominees, from having access to the plaintiffs' property situate and known as 4 Woorarra Court, Chirnside Park, via the driveway constructed across the defendant's property situate and known as 6 Yarraview Road, Chirnside Park.
The costs of the parties of this application are reserved.
I direct that the order be prepared by the solicitors for the plaintiff and brought to me for authentication.
That has already been done and I shall now authenticate that order.
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