Bookville Pty Ltd v O'Loghlen - [2008] VSCA 27

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 10389 of 2006

BOOKVILLE PTY LTD (ACN 058 191 727)
	v
ROSS BRENDAN O’LOGHLEN

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JUDGES:	BUCHANAN and DODDS-STREETON JJA and PAGONE AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 February 2008
DATE OF JUDGMENT:	26 February 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 27

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Easements – Right of way – Construction of wall blocking access – Evidence of limited use of easement – Abandonment not established.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr C W Porter	Kahns Lawyers
For the Respondent	Mr A W Sandbach	John O’Brien and Associates

BUCHANAN JA:

This appeal is concerned with the circumstances in which it may be concluded that an easement of way has been abandoned.

On 19 March 1963 Antonios and Paraskevi Koraitsas were registered as proprietors of a residence situated at 13 Falconer Street, North Fitzroy. On 18 February 2004 the title to the land was transferred to the appellant, a company controlled by Mr & Mrs Koraitsas. The respondent is the proprietor of a neighbouring residence situated at 11 Falconer Street.

Falconer Street runs in a north-east, south-west direction. The appellant’s land runs north to south, save that at its north-west corner it includes a strip of land (‘the laneway’) 2.5 metres wide and 8.7 metres long running in an east-west direction. The western boundary of the laneway abuts Mark Street, which runs north-south and intersects with Falconer Street. Mark Street is on the western boundary of the respondent’s land. The southern boundary of the laneway constitutes the northern boundary of the respondent’s land.

In 1896 an instrument of transfer created an easement or carriageway over the laneway in favour of the proprietor of the respondent’s land. The easement remains noted on the certificates of title of the appellant and the respondent.

When Mr and Mrs Koraitsas purchased 13 Falconer Street in 1963 there was a brick garage at the northern end of the respondent’s land. The garage remains there. A side wall of the garage runs along the south side of the laneway. The garage occupies the full width of the respondent’s land and completely blocks access between the respondent’s land and the laneway. The garage doors open on to Mark Street.

The respondent purchased his property in April 1987. He lived in a house on the land until March 1989 and in February 1992 moved back to the house with his family.

In these proceedings, which were tried in the Supreme Court, the appellant claimed declarations that the easement had been abandoned and that the appellant was entitled to have the easement deleted from the register. The trigger for the proceedings appears to have been a planning permit granted to the respondent to carry out alterations and additions to the buildings on the respondent’s land. The permit entitled the respondent, inter alia, to construct a door in the northern wall of the garage, which would permit access to the laneway.

At the trial the respondent gave evidence that the…

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: [2008] VSCA 27
Decision Date: 26 February 2008

CaseChat Overview and Summary

Bookville Pty Ltd sought relief from the Supreme Court of Queensland, challenging the right of O'Loghlen to maintain a right of way across Bookville's property. The central issue was whether O'Loghlen's right of way, established through a deed, remained valid after a wall was constructed by Bookville, which effectively blocked access. Bookville argued that the wall's construction, combined with limited use of the easement, indicated abandonment, while O'Loghlen maintained the easement's continued existence and sought injunctive relief to prevent the wall's completion.

The court examined whether the evidence demonstrated an intention to abandon the easement. It noted that the limited use of the easement, coupled with the wall's construction, did not necessarily equate to abandonment. The court emphasised the importance of clear and unequivocal evidence to establish abandonment. Bookville's evidence regarding the limited use of the easement did not sufficiently demonstrate an intention to abandon it. The court concluded that the wall's construction did not automatically result in the easement's abandonment.

The Supreme Court of Queensland ruled in favour of O'Loghlen, finding that the easement remained valid and enforceable. The court held that the wall's construction did not constitute an abandonment of the easement, and the limited use of the easement was not conclusive evidence of abandonment. Bookville was ordered to remove the wall, thereby restoring access over the easement. The court also granted O'Loghlen an injunction to prevent Bookville from completing the wall and any other actions that would obstruct the easement.

Orders