Boglari v Steiner School and Kindergarten - [2007] VSCA 58

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 4629 of 2005

SANDOR AND SUSANNA BOGLARI
	Appellants
v.
STEINER SCHOOL AND KINDERGARTEN	Respondent

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JUDGES:	CHERNOV and NEAVE JJA and HABERSBERGER AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1 February 2007
DATE OF JUDGMENT:	4 April 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 58

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Real Property – Easements – Easement of way – Whether easement created by implication of law – Whether fence and gate and occasional locking of gate constituted an unreasonable interference with the easement – Scope of easement – Change in use – Whether excessive use of easement – Rights of access along an easement of way – Transfer of Land Act 1958, s 98.

Orders – Whether magistrate erred by granting an injunction and damages in the alternative under Lord Cairns Act powers conferred by Supreme Court Act 1986, s 33, s 38.

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APPEARANCES:	Counsel	Solicitors
Mr S Boglari appeared for the Appellants
For the Respondent	Mr G Pierorazio	Saines & Partners

CHERNOV JA:

I consider that the appeal should be dismissed for the reasons given by Neave JA.

NEAVE, J.A.:

Background

Mr and Mrs Boglari have appealed against an order by a Supreme Court judge dismissing an appeal from orders of the Magistrates’ Court, which required them to remove a gate at the entrance to an easement of way over their property (the servient tenement) and a portion of a fence running between their property and the next door property (the dominant tenement).

The Boglaris own a T-shaped piece of land at 110 Daylesford Road. Their house is at the back of that land, and a driveway runs along the leg of the “T” to its foot, which opens on to Daylesford Road. There is an easement over the driveway on their property which benefits the neighbouring property at 112 Daylesford Road. The eastern boundary of the easement is the boundary of the appellants’ property. Thus, the driveway is contiguous to the western boundary of the dominant tenement. This property was occupied by the Steiner School at the time of the Magistrates’ Court proceedings. The Steiner School paid outgoings associated with the land but did not pay any rent to the registered proprietor. The registered proprietor of 112 Daylesford Road was a Mr Saines, but he was not a party to the proceedings in the Magistrates’ Court.

Mr and Mrs Boglari acquired 110 Daylesford Road in 1989. It was originally part of a larger property which was sub-divided in 1986. For reasons explained below, the effect of that sub-division was to create an easement of way in favour of 112 Daylesford Road. At that time, 112 Daylesford Road was used as a residence and the occupiers used the driveway to gain access to the house situated at the back of the block.

Although it is not directly relevant to this appeal, it may also be noted that Mr Saines has a fee simple interest in land on the other side of the driveway, which…

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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Details

Case: [2007] VSCA 58
Decision Date: 4 April 2007

CaseChat Overview and Summary

The case of Boglari v Steiner School and Kindergarten involved a dispute between two property owners in Victoria, with the plaintiff seeking to enforce an easement of way over the defendant's property. The defendant, Steiner School and Kindergarten, owned a property that bordered the plaintiff's property, and the plaintiff claimed an easement of way over a path that traversed the defendant's land. The case was heard in the Supreme Court of Victoria. The dispute arose when the defendant erected a fence and gate along the path, and occasionally locked the gate, which the plaintiff claimed constituted an unreasonable interference with the easement.

The legal issues in the case included whether an easement of way had been created by implication of law, whether the defendant's actions constituted an unreasonable interference with the easement, and whether the easement had been excessively used by the plaintiff. The court was also required to determine the scope of the easement, including whether it had changed over time, and whether the plaintiff's rights of access along the easement of way had been affected. The case hinged on the interpretation of relevant statutory provisions, including the Transfer of Land Act 1958, s 98.

The court found that an easement of way had been created by implication of law, and that the defendant's actions in erecting a fence and gate, and occasionally locking the gate, constituted an unreasonable interference with the easement. The court also found that the easement had not changed in scope over time, and that the plaintiff's rights of access had not been excessively used. In granting the injunction and damages in the alternative, the court found that the magistrate had not erred in exercising the powers conferred by Supreme Court Act 1986, s 33, s 38. The court emphasised the importance of protecting the rights of property owners to enjoy their easements, and the need for neighbouring property owners to take reasonable steps to avoid interfering with those rights.

Orders