Boekeman v Aaron - [2019] NSWSC 990

Supreme Court

New South Wales

Medium Neutral Citation: Boekeman v Aaron [2019] NSWSC 990
Hearing dates: 31 July 2019
Date of orders: 07 August 2019
Decision date: 07 August 2019
Jurisdiction: Equity
Before: Darke J
Decision:
Summons is dismissed with costs.

Catchwords: LAND LAW – easements – substantial interference with rights under easements – where plaintiff and defendant are lot owners in a strata scheme – where right of footway in favour of lot owners exists over part of the defendant’s car park space – where right of footway provides access to gas and water meters – where car park space protected by lockable garage door which can be opened by an electronic remote control device – where defendant provided such device to the plaintiff – where plaintiff returned such device – whether lockable garage door is a real substantial interference with plaintiff’s entitlement to use right of footway – no substantial interference established
Legislation Cited: Conveyancing Act 1919 (NSW), ss 88B, 181A, Sch 8
Cases Cited: Buckley v Timbury [2013] NSWSC 1009
Denton v Phillpot (1990) NSW Conv R 55-453
Keefe v Amor [1965] 1 QB 334
Powell v Langdon (1944) 45 SR (NSW) 136
Prospect County Council v Cross (1990) 21 NSWLR 601
Trewin v Felton (2007) 13 BPR 24,579; [2007] NSWSC 851
Zenere v Leate (1980) 1 BPR 97,029
Category: Principal judgment
Parties: Ross David Boekeman (Plaintiff)
Jennifer Eva Aaron (Defendant)
Representation:
Counsel:
Mr R Lovas (Plaintiff)
Mr M Astill (Defendant)
Solicitors:
Lawyers Chambers on Riley (Plaintiff)
Peter Keel (Defendant)

File Number(s): 2019/40559
Publication restriction: None

Judgment

Introduction

The plaintiff, Ross Boekeman, is the owner of Lot 1 in Strata Plan 58150. The defendant, Jennifer Aaron, is the owner of Lot 6 in Strata Plan 58150. The strata plan was established on 26 November 1998. The strata scheme consists of eight lots and common property located throughout a 4 level building located in William Street, Leichhardt.
Level 1 of the building may be described as a basement car park. Eight portions of the car park have been allocated to a particular lot in the scheme. That is to say, each lot includes some space in the car park. The balance of the car park is common property.
This case concerns the portion of the car park that forms part of the defendant’s Lot 6, and in particular a right of footway over that part of Lot 6. The easement benefits all the other lots in the scheme. The easement was created at the same time the strata scheme was established.
The easement is described on the relevant instrument made for the purposes of s 88B of the Conveyancing Act 1919 (NSW) as “Right of Footway 0.76 wide”. By the operation of s 181A(1) of the Conveyancing Act, that description imports the words contained in Part 2 of Schedule 8 to the Act, namely:

Full and free right for every person who is at any time entitled to an estate or interest in possession in…

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.

Continue reading Boekeman v Aaron

Details

AGLC: Boekeman v Aaron [2019] NSWSC 990
Case: [2019] NSWSC 990
Decision Date: 07 August 2019

CaseChat Overview and Summary

In the Supreme Court, Boekeman, a lot owner in a strata scheme, took legal action against Aaron, another lot owner in the same scheme, over an alleged substantial interference with the easement rights of the plaintiff. The easement in question provided Boekeman with a right of footway over a portion of Aaron's car park space, facilitating access to gas and water meters. Aaron had initially provided Boekeman with an electronic remote control device to operate the lockable garage door at the entrance of the car park space, but later reclaimed the device. Boekeman sought a declaration that the lockable garage door constituted a substantial interference with his easement rights, and an order requiring Aaron to remove the door or to construct a new footway that bypasses the garage door.

The court had to determine whether the lockable garage door constituted a real and substantial interference with Boekeman's easement rights. The court examined the nature and extent of the interference, and whether the garage door impeded Boekeman's use of the footway for accessing the gas and water meters. The court also considered the circumstances under which the remote control device was provided and subsequently reclaimed by Aaron.

The court found that there was no real substantial interference with Boekeman's easement rights. The court observed that the lockable garage door did not impede Boekeman's access to the gas and water meters, as the footway provided a clear and unobstructed path to the meters. The court also noted that the garage door was only one of two access points to the car park space, and that Boekeman had not demonstrated any significant inconvenience caused by the garage door. The court further found that Aaron's reclamation of the remote control device did not amount to a substantial interference, as Boekeman still had access to the footway and could continue to access the meters by using the alternative access point.

The court dismissed Boekeman's claims and made no orders in relation to the lockable garage door or the remote control device.

Orders