Bourke v Creece
[2014] VCC 970
•1 August 2014
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT Melbourne
CIVIL DIVISION
COMMERCIAL LIST
EXPEDITED CASES DIVISION
Case No. CI-14-01671
| MAREE THERESE BOURKE & ORS (according to Schedule attached) | Plaintiffs | ||
| v | |||
| GRAHAM GEOFFREY CREECE | First Defendant | ||
| and | |||
| JANINE FAYE WILCE | Second Defendant | ||
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JUDGE: | HIS HONOUR JUDGE COSGRAVE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23-26 June 2014 | |
DATE OF JUDGMENT: | 1 August 2014 | |
CASE MAY BE CITED AS: | Bourke v Creece | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 970 | |
REASONS FOR JUDGMENT
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Subject:CONTRACT, EQUITY, PROPERTY
Catchwords: CONTRACT – Deed of settlement – Whether terms breached.
EQUITY – Remedies – Injunctions – Perpetual injunction – Adequacy of damages.
PROPERTY – Easement of way – Interference with easement –Whether easement extinguished.
Legislation Cited: Planning and Environment Act 1987 (Vic); Subdivision Act 1988 (Vic); Transfer of Land Act 1958 (Vic).
Cases Cited:Bland v Levi [2000] NSWSC 161; Burke v Frasers Lorne Pty Ltd [2008] NSWSC 988; Dresdner v Scida [2003] NSCSC 957; Gohl v Hender [1930] SASR 158; Greenwich Healthcare National Service Trust v London and Quadrant Housing Trust [1998] 3 All ER 437; Jelbert v Davis [1968] 1 WLR 589; Lawrence v Griffiths (1987) 47 SASR 455; Mantec Thoroughbreds Pty Ltd v Nediljko Batur & Gordana Batur [2009] VSC 351; McCrow v Chaplain [2009] NSWSC 965; Moorhouse v University of New South Wales (1974) 3 ALR 1; Newcomen v Coulson (1877) 5 ChD 133; Roesin v Attorney-General (1918) 34 TLR 417; Sanderson Pty Ltd v Urica Liberty Systems BV (1998) 44 NSWLR 73; Spear v Rowlett (1924) 43 NZLR 801; Timpar Nominees Pty Ltd v Archer [2001] WASCA 430; Walker v Espie [2003] NSWSC 559; Woollerton and Wilson Ltd v Richard Costain Ltd [1970] 1 WLR 411; Zenere v Leate (1980) 1 BPR 9300.
Judgment:
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr B Gillies | Michael Vale & Associates |
| For the Defendants | Mr I Upjohn | McSwiney Green & Roman Lawyers |
HIS HONOUR:
1 This dispute concerned two adjoining properties at Bundalong on the Murray Valley Highway in Northern Victoria.
2 The plaintiffs are the registered proprietors of Lot 1 on Plan of Subdivision 508761T, being the land in Certificate of Title Volume 10684, Folio 477 (“Lot 1”). This is known as the Bundalong Holiday Resort (“the Resort”). The Resort has 55 sites for caravans and tents, 15 cabins for rent and 25 annuals.
3 The first plaintiff (“Mrs Bourke”) and her husband, Michael (“Mr Bourke”), operate the Resort.
4 The defendants are the registered proprietors of Lot 2 on Plan of Subdivision 508761T, being the land in Certificate of Title Volume 10684, Folio 478 (“Lot 2”).
5 Bundalong Tavern Cabins Pty Ltd (“Bundalong Cabins”) purchased the defendants’ property under a terms contract. It also contracted to buy the hotel business on the defendants’ property known as the Bundalong Tavern (“the Tavern”).
6 The Plan of Subdivision shows an easement of way across Lot 2 in favour of Lot 1. The easement is 16 metres wide and runs parallel to the eastern border of Lots 1 and 2. Sullivans Road is the road immediately south of Lot 2, and Montroses Road is the road on the western boundary of Lots 1 and 2. I attach as Annexure A to these reasons a copy of the relevant plan setting out the two Lots and the roads referred to.
7 In short, the plaintiffs claimed that the defendants had obstructed the plaintiffs’ right of way so that the plaintiffs, and their customers who wanted to access Lot 1 from the highway via Sullivans Road (or wished to drive from the Resort to the highway) via Sullivans Road, had been prevented from doing so.
8 The defendants denied obstructing the easement. Further, they said that to the extent that they might have obstructed the easement, it was justified on the basis that it was necessary in order to comply with occupational health and safety requirements and/or it was designed to improve the safe entry onto, and exit from, Lot 1 and minimise the inconvenience and danger to the hotel patrons.
Issues in dispute
9 The parties agreed that the disputed issues were as follows:
(a)What was the statutory basis of the easement of way?
(b)Was the easement blocked?
(c)If the easement had been blocked, was an injunction necessary? Had the plaintiffs suffered loss and damage and, if so, what was the quantum?
(d)If the easement had not been blocked, were the plaintiffs liable on their undertaking in damages to the defendants and/or to Bundalong Cabins?
(e)Was the easement extinguished or ought it be extinguished? Should the easement be restricted as to its use?
(f)Have the plaintiffs engaged in misleading and deceptive conduct or unconscionable conduct?
(g)Was there a breach of the terms of settlement between the parties, including whether clause 8 thereof precluded the bringing of these proceedings?
Background
10 The plaintiffs bought Lot 1 in 2005 as vacant land. However, there existed at the time of purchase a planning permit for the use of the land as a caravan park and cabins. The Moira Shire Council (“the Council”) granted the permit on 16 January 2002. The permit contained a number of conditions including the following:
“10Pedestrian paths adequately segregated from vehicular access lanes must be provided to the satisfaction of the Responsible Authority.
11The surface of the car park areas and access aisles and driveways are to be treated, to the satisfaction of the Responsible Authority, to prevent the loss of amenity to the neighbourhood through dust and drainage.
12The area set aside for the parking of vehicles together with the aisles and driveways must be paved to the satisfaction of the Responsible Authority by being sealed or surfaced in crushed rock or gravel of adequate thickness as necessary to prevent the formation of potholes and puddles and such areas are to be constructed drained so as to be usable for their purpose to the satisfaction of the Responsible Authority.”
11 On 24 July 2002, the Council approved a boundary realignment between Lots 1 and 2.
12 On 2 October 2002, the Council endorsed the Plan of Subdivision for Lots 1 and 2.
13 On 29 October 2002, the Plan of Subdivision was registered.
14 In 2006, the plaintiffs began construction to develop the Resort.
15 In November 2007, the Resort opened for business.
16 The defendants took possession of the Tavern business in about mid-2006. When the defendants bought Lot 2, they retained solicitors to act on their behalf. Mr Creece, the first defendant, said that they conducted a title search before buying the property and also checked with the Council regarding any encumbrances affecting Lot 2. I infer that any reasonably competent solicitor acting for a buyer in these circumstances would inform the buyer that the property was subject to a 16 metre easement of way in favour of the owners of Lot 1. It was apparent from the Plan of Subdivision documents that the easement was created intentionally as part of the subdivision of the two properties.
17 I note Mr Creece’s comment that he probably did not know when he bought Lot 2 that there was an easement of way in favour of Lot 1. I make two observations about this. First, if it is true, then it suggests either the solicitor omitted to tell the defendants an important piece of information regarding the land they were about to buy or alternatively, the defendants paid little attention to what the solicitor told them and proceeded to purchase Lot 2 without being aware of this significant information. Second, if the defendants did not know about the easement, their ignorance is irrelevant in any event.[1]
[1]Given that Mr Creece’s partner, the second defendant, did not give evidence and was not questioned, it is possible that she knew about the easement of way.
18 During 2013, the defendants engaged in various activities which either obstructed the easement or interfered with its normal usage. For example:
·A water supply meter was placed on the easement.[2]
·At one point, the defendants parked a vehicle on the easement in such a way that it obstructed the easement; users of the easement had to drive carefully around the vehicle.
·At one point the defendants parked a car at the other end of the easement creating another obstruction.
·In December 2013, two large fence posts were placed across the easement in a manner which obstructed its usage.
·The defendants located wooden poles in the easement in such a way as to create an obstruction.
[2]Some evidence suggested that the precise location was chosen by the relevant water authority, not the defendants.
19 On about 9 December 2013, the plaintiffs commenced proceedings against the defendants in this Court claiming injunctive relief against the defendants in respect of matters relating to the alleged obstruction of the easement of way.
20 On about 11 February 2014, the parties attended a mediation and terms of settlement were entered into. Pursuant to the terms of settlement, the defendants undertook not to interfere with access to the carriageway easement which traverses Lots 1 and 2 and to remove any obstructions presently on the easement except for the water meters and trees. Subject to Council approval and approval by the plaintiffs, the defendants also agreed to erect signage in respect of access to the plaintiffs’ property at the cost of the defendants. The defendants agreed to pay the plaintiffs’ costs fixed at $10,000 by paying $5,000 no later than 28 February 2014 and a further $5,000 by 28 March 2014. I understand that those payments have been made, albeit that they were late.
21 On about 19 November 2013, the Council granted a planning permit in respect of Lot 2 which authorised the development of the existing hotel and residence to include 35 cabins and a business identification sign.
22 On about 20 January 2014, Bundalong Cabins – which I assume is a company associated with Mr Brett Butler (who gave evidence for the defendants) because he signed on behalf of the buyer – contracted to purchase the hotel business conducted on Lot 2 for $500,000. The buyer agreed to pay a deposit of $2,500 immediately and the balance of the purchase price on 20 January 2019.
23 Also on 20 January 2014, Bundalong Cabins purchased Lot 2 from the defendants for $700,000. The purchaser agreed to pay a deposit of $2,500 and the residue in 5 years.
24 In or about early March 2014, Mr Butler, the manager of the company conducting the development and construction of the cabins on Lot 2, erected temporary fencing with a gate across the easement of way. The defendants contended that the building works were in the immediate proximity of the easement of way and involved heavy machinery, excavation, loose wiring and other hazards. The defendants and Mr Butler contended that it was a legal requirement that the construction site be adequately fenced and gated.
25 On about 7 April 2014, the plaintiffs commenced this proceeding, again seeking injunctive relief against the defendants in respect of the easement of way.
26 According to Mrs Bourke, until the easement was blocked, about half of those staying at the Resort used the easement and half used the more indirect route along Sullivans Road and Montroses Road. Mrs Bourke, as the manager of the Resort on a day to day basis while her husband conducted a separate business as a plumber, spent considerable time in her office at the Resort. From there, she said that she had a clear view of the front of the easement and could see where people entered the easement after turning off the Murray Valley Highway. Mrs Bourke said that there were problems with the indirect route. When it rained heavily, the road was not accessible to cars but only to four wheel drive vehicles. The water could be several inches deep and the ground extremely muddy. Also, when there were strong winds, tree branches were prone to fall on the road. Sullivans Road was sealed with bitumen only about four years ago and Montroses Road has never been sealed with bitumen. In about August 2013, the Council laid gravel on Montroses Road at its expense from funds provided to assist in repairing damage caused by a tornado which occurred in the area last year.
27 Mr Creece had a very different assessment of the split of traffic between the easement of way and the indirect roads. He said that about 95 per cent of the Resort’s customers used the roads and about 5 per cent the easement of way. The defendants also pointed to the orientation and layout of the Resort as reflecting the main or principal entrance point of the Resort being located close to Montroses Road as opposed to the easement of way.
Credit of witnesses
28 The defendants urged the Court to accept the evidence of Mr Creece in preference to the plaintiffs on contested issues of fact. Counsel contended that Mr Creece was an impressive and credible witness who answered questions fully, made appropriate concessions and was not the “hot headed, hard swearing man” which the plaintiffs alleged. Mr Creece was said to be a man used to giving evidence and giving it truthfully. The defendants contended that this was not the case with the plaintiffs.
29 Certainly, Mr Creece had considerable experience giving evidence and being cross-examined. He had been a policeman for 37 years before retiring to run the Tavern business. His demeanour was confident and assured. He appeared to be convinced of the strength of his case and his perceived rights: his entitlement to have a fence over the easement; his entitlement to see and approve any plans which the plaintiffs wished to submit to the Council to pave the easement; erecting signage saying that there was “no road” in the vicinity of the easement; the steps taken to slow traffic on the easement or to dissuade people from using the easement.
30 However, I have considerable doubts about accepting Mr Creece’s evidence at face value. First, he made a number of factual errors in his evidence. For example, in one affidavit he said that a particular meeting took place in February 2014, but in a second affidavit he said the meeting took place on 21 March 2014. Of itself, this is not a major point. However, if a person is uncertain about a date, especially an experienced deponent such as the first defendant, I do not see why he should commit himself to a specific month when there was no need, and then change the date in a later affidavit without offering any explanation for the change.
31 Another example relates to the date when Mr Bourke had arranged for special gravel to be laid on the easement in September 2012. Although it was common ground with the plaintiffs and the truck driver who delivered the special gravel that the event took place in September 2012, Mr Creece, in a letter to persons at the Council written on 13 April 2014, said the event took place in 2013. Later in cross-examination, Mr Creece acknowledged the error he had made.
32 Second, Mr Creece was prepared to make statements which, upon further examination, lacked a proper factual foundation. For example, in his affidavit sworn on 9 April 2014, Mr Creece said, in relation to the gate in the fencing panel installed over the easement, that “[a] number of times, the plaintiffs have left the gate open deliberately”. Mr Creece made the assertion, but he did not say that he saw either of the plaintiffs come through the gate and leave it open. Nor did any other witness give such evidence. Nor did any witness, including Mr Creece, give evidence that the Bourkes intentionally left the gate open. Moreover, Mrs Bourke in her evidence said the plaintiffs did not use the easement after the fencing went up across the easement. This evidence was not challenged in cross-examination.
33 Further, Mr Creece said that the Bourkes had stated in the court proceedings that they had put plans before the Council regarding the easement. When asked to identify where in the court documents this statement was made, Mr Creece could not identify any such document. In re‑examination, counsel for the defendants did not produce any document for Mr Creece in response to this challenge. Nor was any such document referred to in final submissions.
34 Thirdly, Mr Creece denied allegations, notwithstanding the weight of evidence supporting them. For example, he was referred in cross-examination to correspondence between him and the Council where reference was made to illegal conduct by the plaintiffs in blocking part of Montroses Road. Notwithstanding the correspondence and its tone, Mr Creece denied that he wanted the plaintiffs, or either of them, prosecuted. He said at one point he did not want Mr Bourke to be prosecuted. He was simply asking the Council officer why Mr Bourke was not being prosecuted if he had acted illegally.
35 Also, in relation to the allegation that some users of the easement were photographed as they did so, Mr Creece denied that this was intimidating.
36 For the reasons set out, I consider that Mr Creece had an unsatisfactory attitude to the truth. His attitude was too casual. He made errors with dates. He made unsubstantiated allegations. He would not alter an answer even when a concession was appropriate. He did not take his oath sufficiently seriously.
37 In addition, it is notable that even though Mr Creece said that the defendants did not block the easement – they only partially obstructed it – his partner, the second defendant, said in a letter to the Council dated 13 February 2014 that they did block the easement. Ms Wilce did not give evidence at the trial and the defendants proffered no explanation for her absence.
38 By way of contrast, I accept the evidence of Mr and Mrs Bourke. Each of them appeared to be telling the truth as best they could without obvious exaggerations. Each of them seemed straightforward and honest in their responses to questions.
39 There were two main factual differences between the parties on the evidence. The first related to the division of traffic between those using the easement and those using Sullivans Road and Montroses Road to access the Resort. The second related to the conversation which took place between Mr Creece and Mrs Bourke at Mrs Bourke’s office in June 2013. Of these two, the former is directly relevant to the case while the second matter is of less relevance. For what it is worth, I do not accept that Mrs Bourke commenced the conversation with Mr Creece at her office by swearing at him in the terms he alleged and I do accept that, having directed coarse language at her in the meeting, Mr Creece did call Mrs Bourke a “fat slob”.
40 With regard to the traffic split, I have noted in paragraphs 26 and 27 above the competing positions of the parties. Having regard to my views as to the credit of the various witnesses, I accept Mrs Bourke’s estimation of the traffic flows on the respective routes in preference to Mr Creece’s evidence.
Issues
(a) What was the statutory basis of the easement?
41 Although it was said that, on the pleadings, an issue arose regarding the statutory basis of the easement of way, in final submissions, the defendants accepted that there was no practical or legal significance attaching to the origin of the easement. Whether there was reliance upon the Subdivision Act 1988 (Vic) or the Transfer of Land Act 1958 (Vic), the outcome was the same to the extent that there was an admitted right of access over Lot 2 in favour of Lot 1.
(b) Was the easement blocked?
42 I have noted previously that, historically, altercations had occurred between the parties as a result of, among other things, the defendants obstructing (in whole or in part) the easement. However, I do not need to address those matters because they were the subject of an earlier proceeding which the parties settled pursuant to written terms of settlement.
43 The present allegation relates to the fence which was put across the easement by Mr Butler who, through a company apparently controlled by him, has entered into a commercial relationship with the defendants to buy Lot 2 and the Tavern business, and has committed to constructing 35 cabins on Lot 2.
44 Mr Butler said that, as a builder, he was required by law to fence off the building works with a 1.8 metre high fence so that the public could not enter the site and injure themselves. Here, in order to connect the cabins to the water supply, there would have to be a pipe sunk beneath the easement to the water connection on the Murray Valley Highway side of the easement. The pipe would have to be in a trench at a depth of about 600 millimetres with at least 150 millimetres of bedding.
45 Accordingly, Mr Butler erected the wire fence around the building works including the area across the easement in order to keep out the public from the building site.
46 The fence had a hinged panel with a wheel on the bottom and a fixing device so that it could be moved and operate like a gate. Butler said that the fence panel was easy to open whether the ground was wet or dry. He said he did not lock the gate nor had he seen anyone else lock it. On the hinged fence panel was signage stating:
“Unauthorised persons prohibited. Construction site. Unauthorised persons keep out.”
47 Butler agreed that actual or prospective users of the Resort would probably not realise that the signage was not intended to apply to them or to prevent them from using the easement to reach the Resort. Although Butler said that he had no issue with people from the Resort using the easement, he agreed that they probably would not know that they were authorised to do so.
48 The plaintiffs contended that the gate was “very bulky and very difficult to deal with”. Moreover, they argued that it gave the impression that the easement was completely enclosed by the fence and thereby deterred people from using the easement to enter the Resort.
(i) Legal principles
49 The law relating to easements of way has an extensive history. So far as it is material, I will deal with some of the applicable principles.
50 In Timpar Nominees Pty Ltd v Archer,[3] the Western Australian Court of Appeal held:
“Subject to any limitation to be derived from the words of the grant, or the surrounding circumstances, a right of way may be used in the manner authorised by the grant, for any purpose and to any extent for the time being required for the enjoyment of the dominant tenement or any part of it, irrespective of the purpose for which the dominant tenement was used at the date of the grant - see Ackroyd v Smith (1850) 10 CB 164; 138 ER 68, United Land Co v Great Eastern Railway Co (1875) 10 Ch App 586, White v Grand Hotel, Eastbourne, Ltd [1913] 1 Ch 113 at 116 and Robinson v Bailey [1948] 2 All ER 791.”[4]
[3][2001] WASCA 430
[4]Ibid at [37]
51 In Burke v Frasers Lorne Pty Ltd,[5] Brereton J said:
[5][2008] NSWSC 988
“Against that background, I turn to the legal position. Some of the relevant principles are clearly established. First, a servient owner has no obligation to construct a right of way granted over its land. Its obligation is limited to the negative one of not obstructing the dominant owner's reasonable use of the right of way [Spear v Rowlett [1924] NZLR 801].
Secondly, a dominant owner is entitled to construct a road over the site of a right of carriageway [Newcomen v Coulson (1877) LR 5 Ch D 133 at 143–4 (Jessel MR); Mills v Silver [1991] Ch 271 at 286–7 (Dillon LJ); Gerrard v Cooke (1806) 2 Bos & Pul (NR) 109; (1806) 127 ER 565; Senhouse v Christian (1787) 1 Term Rep 560; (1787) 99 ER 1251; Zenere v Leate (1980) 1 BPR 9300 (McLelland J); Butler v Muddle (1995) 6 BPR 13,984; [1996] ANZ ConvR 147; (1995) NSW ConvR 55–745 (Young J); Kirkjian v Towers (NSWSC, Waddell CJ in Eq, 6 July 1987, unreported); Sertari Pty Ltd v Nirimba Developments Pty Ltd [2007] NSWCA 324, [9]; Lawrence v Griffiths (1987) 47 SASR 455]. This is an ancillary right of a dominant owner: incidental to a grant of a right of way, the grantee may enter on the easement to do whatever is reasonably necessary to make the grant effective — including, in the case of a right of carriageway, not only repairing it but making a road so that there is a serviceable carriageway over which vehicles can pass in poor conditions as well as in good weather. These cases establish that the right to construct a road includes a right to pave.
Thirdly, however, that right is limited to what is reasonably necessary for the effective and reasonable exercise and enjoyment of the easement [Zenere v Leate; Prospect County Council v Cross (1990) 21 NSWLR 601 at 607–8 (Bryson J); Butler v Muddle]. This is, in substance, the same concept as that of non-excessive user [cf Sertari Pty Ltd v Nirimba Developments, [11]–[20]].
Fourthly, a servient owner retains, in respect of his or her property the subject of a right of carriageway, all those rights of ownership that are not inconsistent with the exercise by the dominant owner of the rights expressly given or implicitly confirmed by the grant [Zenere v Leate; Prospect County Council v Cross]. The corollary is that a servient owner’s rights are diminished to the extent that they are inconsistent with reasonable exercise by the dominant owner of its rights.
Fifthly, where an easement permits of the exercise of the rights granted in a number of different ways, generally the dominant owner is entitled to choose the manner of its exercise, and even to change that use from time to time. This may be illustrated in the context of a right of way that runs along the boundary of a property to which it is intended to give access and where there are multiple points from which access might be had from the right of way into the dominant land: in those circumstances, the dominant owner is entitled to select a reasonable number of points for that access, and even to change those points from time to time [Trewin v Felton [2007] NSWSC 851, [19], [36]; Butler v Muddle; Chiu v Healey [2003] NSWSC 857].
Sixthly, in a case of a private right of way such as the present one, only a substantial obstruction — that is to say a ‘real substantial interference with the right of way’ — is actionable [Pettey v Parsons [1914] 2 Ch 653; Powell v Langdon (1944) 45 SR (NSW) 136 at 139 (Roper J); Keefe v Amor [1965] 1 QB 334 at 347 (Russell LJ); Prospect County Council v Cross, 608–610]. However, a substantial interference can be occasioned not only by physical impediment, but also by the existence of a state of affairs which creates a danger, or a risk, or a cost associated with user, such as to present an impediment to the dominant owner’s freedom of decision to exercise, or to continue to exercise, the right of way [Prospect County Council v Cross, 610].”[6]
[6]Ibid at [20]–[25]
52 Finally, in Dresdner v Scida,[7] Burchett AJ said:
[7][2003] NSCSC 957
“The test for the availability of relief in circumstances of the kind proved here was stated by Lord Cozens-Hardy MR in Pettey v Parsons [1914] 2 Ch 653 at 662:
‘[I]n the case of a private right of way the obstruction is not actionable unless it is substantial. There must be a real substantial interference with the enjoyment of the right of way.’
As Young J emphasised in Finlayson v Campbell (1997) NSW ConvR 56,449 at 56,455, this is to reduce the matter to “a question of fact”, of which the cases are illustrations. Or, in the words of Roper J in Powell v Langdon (1944) 45 SR (NSW) 136 at 139:
‘Whether an obstruction in a right of way is actionable or not is a question of degree to be decided in the light of the circumstances of each case in which it arises. The law, I think, is clear. ‘In the case of a private right of way the obstruction is not actionable unless it is substantial. There must be a real substantial interference with the enjoyment of the right of way’: Pettey v Parsons [1914] 2 Ch 653 at 662, and see Clifford v Hoare (1874) LR 9 CP 362 and Sketchley v Berger (1893) 69 LT 754. Cases decided on the question of whether the erection of a gate constitutes an actionable obstruction, eg Flynn v Harte [1913] 2 IR 322 Petty v Parsons [1914] 2 Ch 653 Hender v Gohl [1928] SALR 325; 7 Austn Digest 861, are useful only insofar as they go to establish the principles to be applied. The questions here are whether the existing gate does constitute, and whether the threatened fence would have constituted, such an obstruction as to amount to a real and substantial interference with the easement.’
In the particular circumstances, his Honour went on to find (ibid):
‘The steepness of the way in the vicinity of the gates gives an added difficulty to opening and shutting them, and I think that it is an unreasonable restriction on the rights created by the easement to require persons lawfully using it to open or shut the gates.’
Circumstances, including safety considerations, that justified a similar conclusion were set out by Santow J in Sinclair v Jut (1996) 9 BPR 16,219 at 16,230. Without multiplying authorities, it is sufficient also to refer to Carlson v Carpenter (1998) NSW ConvR 56,635, where Cohen J said (at 56,640):
‘There have been many cases in which there has been decided the question of whether a gate or other obstruction constitutes a substantial interference. Each case will depend upon its own facts. These can include the nature of the obstruction, whether, if it is a gate, it can be readily opened and closed, or whether the effect of a gate, even if it can be easily opened, can cause a substantial interference along the land which is subject to the right of way. Obviously, in some cases the presence of a gate can constitute considerable inconvenience and in other cases, such as on a country property, it will be accepted that it is necessary to have gates installed in order to control stock.’” [8]
[8]Ibid at [21]
53 In taking account of the particular circumstances of this case, it is appropriate to consider the nature of the properties involved. Questions may arise as to whether, for example, the easement relates to farming land upon which a party might have valuable stock such as sheep, cattle and horses or another sort of property. The context is important in deciding whether a particular form of gate constitutes an unreasonable and substantial interference with the dominant owner’s enjoyment of the easement. Some dicta suggest that there is a presumption that the servient owner may fence the property where it crosses a right of way.[9] However, the presumption is rebuttable where the presence of the fence on a common boundary would have the effect of blocking or obstructing the right of way and make it too narrow to use.
[9]Adrian J Bradbrook and Susan V MacCallum, Bradbrook and Neave’s Easements and Restrictive Covenants (LexisNexis Butterworths, 3rd ed, 2011) [6.31]
54 McCrow v Chaplain[10] held that although the servient owner may construct a gate across a right of way, the dominant owner must be able to open the gate from his or her side. As Napier J put in Gohl v Hender,[11] the correct interpretation would seem to be that the question is one of fact to be determined upon the circumstances of the particular case with due regard to the competing rights and interests of the parties. This approach appears consistent also with the decision in Walker v Espie.[12]
[10][2009] NSWSC 965
[11][1930] SASR 158 at 162
[12][2003] NSWSC 559
(ii) Factual analysis
55 In considering the circumstances in this case, I have had regard not only to the factual matters already referred to but also to the evidence of Mr Bourke that:
(a)notwithstanding one or more requests by the plaintiffs that the fence be moved to allow passage across the easement, until the injunction was granted in April this year, no steps were taken by or on behalf of the defendants to move the fence; and
(b) on occasion when a person did undertake the effort to move the fence panel and drive across the easement, Mr Bourke in his affidavit claimed that someone photographed the person. The inference was that the photographer was a person connected in some way with the defendants. The evidence did not disclose anyone else with a major interest in dissuading people to use the easement. When this evidence was put to Mr Creece in cross-examination, he claimed that he was not aware of such conduct occurring. Beyond this, the plaintiffs did not expand on the evidence and the defendants’ witnesses did not address the point. Given the history of acrimony between the parties and Mr Creece’s attitude to the truth, I think it likely that the defendants did engage, directly or indirectly, in such conduct. I do not accept Mr Creece’s denial of involvement. Also, I note the court is unaware of the second defendant’s position on this issue due to the unexplained failure of Ms Wilce to give evidence at the trial. Her absence did not assist the defendants.
56 I find that the defendants’ interference with the easement of way in favour of Lot 1 was sufficiently substantial to warrant the plaintiffs bringing this proceeding. I reach this conclusion for a number of reasons.
57 First, I accept that the fence panel with the wheel was not always easy to operate in all weather conditions. Particularly in muddy conditions, the gate could be difficult to move. I note also that apart from the limited context in which the defendants by themselves or their agent need to do some particular work – for example laying a pipe across the easement, which prevents anyone using the easement for the period of time required to complete the work – there is no need (on the present evidence) for the defendants to place across the easement a fence of the kind in issue. Especially is this the case when the plaintiffs have already constructed a fence designed in part to keep out of the Resort people who have no entitlement to be there. Once the pipe is laid and the turn-around area finalised, the construction zone can be cordoned off without the need for a fence over the easement.
58 Second, the signage on the gate was intended to deter persons from opening or passing through the fence. This was a clear disincentive for existing or potential Resort customers to use the easement.
59 Thirdly, photographing users of the easement constituted a form of intimidation, the purpose of which was to deter prospective customers of the Resort from using the easement.
60 If I were to take account of the history of the prior conduct of the defendants, which I have not done, it would only reinforce my conclusion regarding the level of interference rather than militate against it.
(c)If the easement had been blocked, was an injunction necessary?Had the plaintiffs suffered loss and damage and, if so, what was the quantum?
61 Given that I have found that the obstruction to the easement of way was relevantly substantial, it is appropriate to grant a permanent injunction against the fence erected and located by the builder. This is so for a number of reasons.
62 In this case, the plaintiffs faced considerable difficulty in proving a quantifiable loss or damage. I accept Mrs Bourke’s evidence that on about twelve occasions she has seen potential customers arrive at the easement, only to find it obstructed by a fence and then drive away (T 28/9-12). When due allowance is made on the one hand for such potential customers who ultimately would not choose to stay at the Resort and, on the other hand, for other potential customers whom she did not see at or in the vicinity of the easement, the uncertainty of the quantum of any loss is obvious. It seems to me that in circumstances where the damages are hard to prove or would be difficult to quantify – such that an award of nominal damages might be made – damages may not constitute an adequate remedy and an injunctive order may be appropriate. As Stamp J held in Woollerton and Wilson Ltd v Richard Costain Ltd[13] in relation to a claim for trespass:
“[T]he very fact that no harm is done is a reason for rather than against the granting of an injunction: for if there is no damage done the damages recovered in the action will be nominal and if the injunction is refused the result will be no more or less than a licence to continue the tort of trespass in return for a nominal payment.”[14]
[13][1970] 1 WLR 411 (cited in I C F Spry, The Principles of Equitable Remedies (Lawbook Co, 9th ed, 2014) at 412).
[14]Ibid at 413
63 Second, the history of the defendants’ conduct suggests that they were prone to take steps designed to reduce or interfere with the level of business which the plaintiffs attract from customers using the easement of way.
64 Finally, the plaintiffs should not be put to the trouble and expense of having to resort to the Court each time their rights in relation to the easement of way are said to be interfered with inappropriately by the defendants. This is consistent with the principle expounded by Stamp J in Woolerton and Wilson Ltd, above.
65 The defendants contended that an injunction is not necessary or desirable when:
·there are requirements under occupational health and safety law to be satisfied; and
·the defendants expressed concern about both the inconvenience caused to patrons’ enjoyment of the outside area of the tavern from dust and the danger to patrons, especially children, if cars, caravans, boat trailers and the like were to drive along the easement to and from the Resort.
66 I appreciate that while the trench is dug to install the water pipe across the easement and the turn-around area is fixed it will be essential to protect the public by fencing off the trench. This will prevent anyone using the easement for about five to seven days. This is the period of time which Mr Butler said the necessary work will take. However, as I indicated during the hearing, I would regard it as in the best interests of the plaintiffs to allow this work to be performed as soon as possible.
67 Beyond such a specific and limited event, I do not read any of the material (or evidence) to which I was referred as requiring that there effectively be a fence of the kind in issue across the servient land regulating access to the Resort. Such a fence is not needed to adequately segregate the construction area.
68 As to the safety of patrons and children and the patrons’ enjoyment of the Tavern, the defendants knew or should have known from before they contracted to buy Lot 2 that:
(a)the adjoining Lot 1 had a planning permit for a caravan park and cabins and that it was at least a possibility (if not reasonably likely) that the land would be used for this purpose;
(b)there was a 16 metre easement of way across Lot 2 in favour of Lot 1; and
(c)it was quite possible, if not reasonably likely, that the easement of way would be used by cars, four wheel drives, caravans, boat trailers and the like.
69 If the defendants were genuinely concerned about the physical safety of their patrons in general, and young children in particular, one might have expected them to have taken measures to separate physically the area of the easement of way from the Tavern area and/or put up warning signs in respect of the possible traffic across the easement of way. I regard the safety concerns expressed by Mr Creece as contrived or at least exaggerated. I note that Lot 1 is adjacent to the Murray Valley Highway. Mr Creece said that the nature of the Tavern was such that, unlike the situation faced by pubs in the township of Yarrawonga, children of patrons do not run off onto the highway. He claimed that it would be “totally out of character” for children to wander far from their families. He did however concede there were situations where some children were retrieved by their parents before they reached the highway. I find this evidence of Mr Creece not altogether consistent. I also note that the first time the defendants appear to have raised the issue of child safety was in the second defendant’s letter to the Council dated 13 February 2014.
(d)Whether the plaintiffs were liable on their undertaking as to damages if the easement had not been blocked
70 Because I have found in favour of the plaintiffs, I do not consider that the plaintiffs are liable on their undertaking as to damages. Had I dismissed the case, I still would not have ruled the plaintiffs liable on the undertaking.
71 The defendants did not claim or prove any loss. The only person potentially claiming some form of damage was Mr Butler. Because he could not connect the water to the two cabins he had completed on Lot 2, he could not finalise the sale of those cabins and as a result, he lacked ready funds to meet all his financial obligations. However, even assuming this to be true (which for present purposes I do) Mr Butler relied exclusively on what Mr Creece told him regarding the injunction and Mr Butler made no contact with the plaintiffs to see if the water pipe could be laid. Mr Butler was a third party who had no dispute with the plaintiffs. In my view, he should have at least attempted to contact the plaintiffs to see if they would allow the plumbing work to be done.
(e) Restriction of the use of the easement
72 During the trial of the proceeding, the defendants no longer contended for the extinguishment of the easement. They accept that it has not been extinguished or abandoned by the plaintiffs. Although the plaintiff advanced various submissions why the easement could not be extinguished, either pursuant to s36 of the Subdivision Act 1988 (Vic) or pursuant to s73 of the Transfer of Land Act 1958 (Vic), I do not need to consider and rule upon these submissions.
73 However, the defendants subsequently argued that the easement of way should be modified in accordance with the following declarations:
(1)It is declared that the plaintiffs’ use of the easement on Plan of Subdivision PS508761T is restricted to its use as a secondary or alternative access to the plaintiffs’ property (Lot 1) in time of flood or for vehicles exceeding 7 metres in length.
(2)It is declared that it is not a substantial or unreasonable interference with the plaintiffs’ enjoyment of the easement for the defendants, whether by themselves, their servants or agents, builder or otherwise, to install a fence across the easement enclosing the building works on such easement for the laying of a water main to the water meter and the construction of a turn-around circle, which works must be completed within a period of ten working days.
(3)It is declared that it is not a substantial or unreasonable inference with the plaintiffs’ enjoyment of the easement for the defendants to install a permanent vehicle access gate of a width of at least 5 metres at the place indicated on the plan which is Exhibit D6.
74 I do not propose to make the declarations sought.
75 In relation to the question of the conditions which might be attached to the easement, the defendants contended that the proposed use foreshadowed in the letter from the plaintiffs’ solicitors dated 15 December 2013, namely, that the easement be the main access point to the Resort, was a substantial change of use which was severely prejudicial to the defendants’ enjoyment of the property and the use to which it could be put.
76 The defendants referred to clause 27 of the 16 January 2002 planning permit and clause 8 of the 24 July 2002 planning permit. Clause 27 was in the following terms:
“Direct vehicular access from the development to the Murray Valley Highway is not permitted and all vehicular access must be via the government road abutting the southern boundary of Crown Allotment 20, Section A, Town and Parrish of Bundalong, being land described in Certificate of Title Volume 8065 Folio 618 utilising the left and right turning lanes constructed in that location.”
Clause 8 of the later planning permit provided:
“Direct vehicular access to the subdivision from the Murray Valley Highway will not be permitted. All vehicular access must be via the existing government road intersection to the south of Lot 2. Legal and practical access to Lot 1 must be obtained over Lot 2 or via the government roads abutting the south and west of the subdivision.”
77 The defendants contended that by distinguishing between, on the one hand, vehicular access and, on the other hand, legal and practical access, the second planning permit in particular intimated or directed that vehicles were meant to reach Lot 1 only via Sullivans Road and Montroses Road and not by using the easement. This was said to support the submission that:
(a)the route along Sullivans Road and Montroses Road was the primary access route to the Resort;
(b)the Resort was built with the reception area near Montroses Road;
(c)if the plaintiffs began to use the easement as the primary point of access, it would be a substantial change in the mode of use of the easement which would be prejudicial to the defendants’ enjoyment of the property.
78 In making this submission, the defendants relied upon Jelbert v Davis.[15] In that case, the owner of an agricultural estate conveyed 18 acres of the land to the plaintiff in October 1961 together with:
“the right of way at all times and for all purposes over the driveway retained by the vendor leading to the main road in common with all other persons having the like right [and] a 10 foot right of way for the purchaser and his successors in title with or without horses, carts, motor vehicles, cattle and other animals at all times and for all purposes through the gate situate at the point marked ‘A’ on the plan annexed hereto to the point marked ‘B’ on the said plan.”
[15][1968] 1 WLR 589
79 The first defendant had an interest in a hotel on the estate and lived on the estate. The second defendant was a farmer who lived with his wife and three children just inside the driveway constituting the right of way. He owned extensive farmlands on the estate and had farmed them with agricultural implements and vehicles since 1957. In June 1966, the plaintiff obtained planning permission to use part of his land as a tourist, caravan and camping site for up to 200 caravans and/or tents between 1 April and 31 October each year, with a condition that no caravans should remain on the site for more than three weeks. The permission was granted on the basis that the right of way would be used for access to, and egress from, the main road between two tourist centres in Cornwall. The right of way was accessed through entrance gates about 10 feet apart. It then widened to about 15 feet and stretched 180 yards. The right of way was used and owned by neighbouring landowners, one of whom used it for farm vehicles. They objected to the proposed user for caravan traffic and put up notices warning campers off. At first instance, the plaintiff established his right to the proposed user but, on appeal, the court ruled against the plaintiff.
80 Lord Denning MR noted that the defendant’s counsel conceded he could not complain that the right of way was to be used for caravans instead of agricultural vehicles such as carts and tractors. Counsel objected not to the use of caravans per se, but to excessive use. Lord Denning said:
“In my opinion a grant in these terms does not authorise an unlimited use of the way. Although the right is granted ‘at all times and for all purposes’, nevertheless it is not a sole right. It is a right ‘in common with all other persons having the like right’. It must not be used so as to interfere unreasonably with the use by those other persons, that is, with their use of it as they do now, or as they may do lawfully in the future. The only way in which the rights of all can be reconciled is by holding that none of them must use the way excessively.
More generally, the true proposition is that no one of those entitled to the right of way must use it to an extent which is beyond anything which was contemplated at the time of the grant …”[16]
[16]Ibid at 595
81 I regard Jelbert v Davis as distinguishable on its facts. First, the easement was intended for the benefit not only of the plaintiff but of other persons such as the defendants and their families so that they could run their businesses on the estate. Here the easement is only for the plaintiffs and their customers.
82 Second, when the owner of the agricultural estate conveyed the 18 acres to the plaintiff, there was no basis disclosed on the evidence for believing that the right of way would be used by vehicles towing caravans. By contrast, the easement of way in this case was created intentionally as part of the subdivision in circumstances where there already existed planning approval to use Lot 1 as a caravan park. Hence, it should not have been a surprise when vehicles towing caravans and the like sought to use the easement. This is precisely what was contemplated at the time of the grant.
83 In my opinion, the defendants have no valid basis to complain about the plaintiff’s use of the easement to access the Resort.
84 Further, I disagree with the defendants’ interpretation of clause 8 of the planning permit. First, it does not explicitly say that road access to the Resort must be along Sullivans Road and then Montroses Road. Second, the clause can be interpreted as:
·prohibiting direct access from the Murray Valley Highway on to the easement;
·providing for vehicles to turn left from the Murray Valley Highway on to Sullivans Road and then from Sullivans Road right on to the easement;
·legal and practical access to Lot 1 is given either over the easement or by means of Sullivans Road and Montroses Road.
85 Regarding the defendants submission set out in paragraph 77, I accept that the reception area of the Resort is close to Montroses Road. However, that alone does not mean that access to the Resort should, subject to special or unusual circumstances, be limited to the route along Sullivans Road and Montroses Road. If the easement were to be more frequently used to access the Resort, I would not regard this as a substantial change in the mode of use. At its highest, it would be a change in frequency.
86 In relation to the proposed Order 1, the defendants did not seek in their counterclaim any order to the effect that the use of the easement be restricted.[17] To that extent, the plaintiffs were not put on notice that the defendants would seek relief restricting use of the easement to a secondary means of access to be used only in time of flood or for vehicles exceeding seven metres in length. Not having been put on notice as to the proposed relief sought by the defendants, the plaintiffs have been denied the chance to lead evidence and make submissions regarding the matter.
[17]Save for the order for extinguishment which was ultimately not pursued.
87 The plaintiffs suggested in their supplementary submissions that, if the defendants wished to raise such an issue, it was a matter within the Planning and Environment Act 1987 (Vic) and could be addressed in VCAT. Whether or not that submission is correct (I do not need to determine the issue), I consider it unfair for the defendants to belatedly raise the point against the plaintiffs at the end of the trial.
88 Another reason for refusing the declaration is that the defendants have not established to my satisfaction that the Court has the jurisdiction or authority to limit the easement of way in the manner suggested.
89 I will not make the second proposed declaration because it is unnecessary. I expect Butler to liaise with the plaintiffs to have the easement fenced off for a short period in order that the cabins can be connected to the water mains and the turnaround area can be constructed. Additionally, I note that no such declaration was sought in the prayer for relief in the defendants’ counterclaim.
90 The final declaration which the defendants now seek was again not referred to in their counterclaim and relates to a gate or section of fencing which currently does not exist.
91 I am troubled that if the Court were to express a view on the matter, it would be tantamount to an advisory opinion because the scenario contemplated by the proposed declaration is currently theoretical or hypothetical. The case was conducted, and the interlocutory injunction granted, on the basis that the dispute related to a section of fence, with attached signage, which in March 2014 was erected across the easement near the border between the properties of the plaintiffs and the defendants. The case did not concern a yet to be constructed fence or gate over the easement. At this point, the details of such fence are not known – for example, its physical dimensions; the hours in which it is kept open and shut; whether it operates automatically or requires a person to get in and out of a vehicle; whether it needs a permit from the council and any conditions which might apply; whether it would bar pedestrian traffic. While the court might have jurisdiction to grant a declaration in the circumstances, as a matter of discretion, I think it should decline to exercise it.[18]
[18]Sanderson Pty Ltd v Urica Liberty Systems BV (1998) 44 NSWLR 73; Moorhouse v University of New South Wales (1974) 3 ALR 1; Roesin v Attorney-General (1918) 34 TLR 417; Cf Greenwich Healthcare National Service Trust v London and Quadrant Housing Trust [1998] 3 All ER 437; see R P Meagher, J D Heydon and M J Leeming, Meagher, Gummow & Lehane’s Equity – Doctrines & Remedies (LexisNexis Australia, 4th ed, 2002) at [19-115].
92 Accordingly, I have decided that it is not appropriate for me to express a view on issues which were not raised by the pleadings or otherwise justified by the underlying facts and the conduct of the hearing.
(i) Right to make and/or repair road on easement
93 I note there has been ongoing correspondence and communications between the parties and the Council regarding the easement of way and the works which are to be carried out upon it. Generally, subject to any contrary indication in the instrument of grant, the grantee has the right to repair the easement. To that extent, the dominant owner has a right to enter the servient owner’s land for that purpose. But in performing repair work, the dominant owner must protect the servient tenement from unnecessary harm.
94 Indeed, where the grantee has an easement of way, that person has a right not only to repair a road but to make a road and therefore, to perform such works on the servient land as are reasonably necessary for the exercise and enjoyment of the easement. Such a right is impliedly conferred by the grant without the need for any express provision.[19]
[19]Mantec Thoroughbreds Pty Ltd v Nediljko Batur & Gordana Batur [2009] VSC 351 at [88]
95 There is no positive obligation on the owner of the servient tenement to undertake any works on a right of way. In Spear v Rowlett,[20] Salmond J stated:
“Ever since the decision of the Exchequer Chamber in Pomfret v Ricroft ([(1669)] 1 Wm Saund 321 [85 ER 454]) it has been settled law that the grant of an easement does not ordinarily and in itself impose upon the grantor any positive obligation to undertake upon his servient tenement any works, whether by way of repair, construction, or otherwise, for the purpose of rendering that tenement fit for the exercise and enjoyment of the easement by the grantee. The obligation of the grantor is merely negative — an obligation, that is to say, to refrain from acts of misfeasance which obstruct the exercise of the grantee’s rights. It is for the grantee himself, at his own cost, to execute on the servient land such works as may be reasonably necessary for the exercise and enjoyment of the easement; and a right to enter and to do all such works is impliedly conferred on him by the grant without any express provision in that behalf.”[21]
[20](1924) 43 NZLR 801
[21]Ibid at 803
96 One case relied on by Salmond J was Newcomen v Coulson,[22] where Jessel MR stated:
“[T]he grantee of a right of way has a right to enter upon the land of the grantor over which the way extends for the purpose of making the grant effective, that is, to enable him to exercise the right granted to him. That includes not only the right of keeping the road in repair but the right of making a road. If you grant to me over a field a right of carriage-way to my house, I may enter upon your field and make over it a carriage-way sufficient to support the ordinary traffic of a carriage-way, otherwise the grant is of no use to me, because my carriage would sink up to the naves of the wheels in a week or two of wet weather.”[23]
[22](1877) 5 ChD 133
[23]Ibid at 143. Salmond J also said that the right to undertake works to permit access over a right of way included cutting a way through impenetrable native bush or erecting a bridge over a river.
97 The right to undertake works on an easement of way is not untrammelled. The right is limited to what is reasonably necessary for the effective and reasonable exercise and enjoyment of the easement. What constitutes reasonable use and enjoyment will depend upon the particular facts.[24]
[24]Zenere v Leate (1980) 1 BPR 9300 at 9304 (NSW Supreme Court); see also Lawrence v Griffiths (1987) 47 SASR 455 at 488
98 Here it is reasonable for the plaintiffs to create an appropriate pavement of some kind over sufficient width of the easement to satisfactorily meet the needs of vehicle users and pedestrians. This is also required by the planning permit issued by the Council. The plaintiffs said that arrangements had been made with the Council whereby its subcontractors would make a roadway over the easement in a manner, and to a standard, approved by the Council.
99 Authority suggests that the owner of the dominant tenement has the right to select the contractor who will build the carriageway, the right to select the particular form of paving which will be used and so on.[25] Further, in Bland v Levi,[26] Young J said, in a case which concerned the replacement of an existing driveway on the easement:
“The right to decide what works will be done, what is the thickness of the driveway and the like, are part of the rights that are granted to the dominant owner and are a matter for it alone.
Accordingly, it seems to me that it follows that the plaintiffs cannot complain that they have not been given full and precise details of the work that is to be done.”[27]
[25]Burke v Frasers Lorne Pty Ltd [2008] NSWSC 988 at [28]
[26][2000] NSWSC 161
[27]Ibid at [22]–[23]
100 This means that, at common law, the plaintiffs do not need to consult the defendants regarding the paving of the easement and do not require their consent to the work.
(f) Unconscionable and misleading and deceptive conduct
101 The defendants have not proved any claim for unconscionability or misleading and deceptive conduct against the plaintiffs. Indeed, in their final submissions, the defendants advanced no argument in support of any submission that the plaintiffs had engaged in such conduct.
(g) Breach of the terms of settlement
102 As to the question of a breach of the settlement agreement, the defendants contended that the complaints by the plaintiffs about the defendants’ conduct alleged in paragraph 14 of Mr Bourke’s affidavit sworn on 3 April 2014, have been waived and released by the terms of settlement entered between the parties on 11 February 2014.
103 The defendants further submitted that by reason of clause 8 of the terms of settlement, the plaintiffs’ bringing of this second court proceeding constituted a breach of the terms of settlement. Clause 8 is in the following terms:
“Mutual waivers and release of all issues in respect of the proceedings save for any submissions to Council and/or VCAT if the dealings with Council are not resolved to the parties’ satisfaction and/or where any breach of these terms occurs.”
104 I accept that the claims made by the plaintiffs in the earlier County Court proceeding issued on 9 December 2013 have been compromised by the terms of settlement entered in February this year. The allegations made in that proceeding cannot give rise to any claim in this second proceeding. However, it seems to me that this new action related to a dispute which only arose in March this year after the settlement of the earlier action. The plaintiffs contended, and I accept, that erecting a 1.8 metre fence across the easement of way together with the signage on the fence panel and the photographing of actual or prospective users of the easement of way, constituted a new infringement of the plaintiffs’ rights. To that extent, bringing this proceeding did not constitute a breach of the terms of settlement.
Conclusion
105 In circumstances where I have found that:
(a) the defendants had inappropriately interfered with the plaintiffs’ enjoyment of the easement of way; and
(b) the defendants were not entitled to the orders sought in their supplementary written submissions
I invite the parties to agree on orders consistent with these reasons. If there is no agreement, I shall hear the parties regarding appropriate orders.
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ANNEXURE A
SCHEDULE OF PARTIES
MAREE THERESE BOURKE
First Plaintiff
and
ESCA PTY LTD
Second Plaintiff
and
DIPPA’S DINGO DIGGER & TRENCHING PTY LTD
Third Plaintiff
and
GRAHAM GEOFFREY CREECE
First Defendant
and
JANINE FAYE WILCE
Second Defendant
2
11
0