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Buckley v Timbury

Buckley v Timbury

Case [2013] NSWSC 1009 1 August 2013

Easements & Covenants

Unjust Enrichment

Specific Performance

Property Law

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Supreme Court

New South Wales

Medium Neutral Citation: David Peter Buckley v David Francis Timbury & Anor [2013] NSWSC 1009
Hearing dates: 28, 29 & 30 November 2012
Decision date: 01 August 2013
Jurisdiction: Civil
Before: Slattery J
Decision:
Actionable interference to easement made out in part, but rejected in part. Directions given for submissions as to costs.

Catchwords: REAL PROPERTY - Torrens Title - easement - plaintiff dominant owner of a right of carriageway - plaintiff claims the servient owners have caused actionable interference to the easement - whether the servient owners have caused real and substantial interference to the easement by latching a gate, by blocking sub-surface drains, by placing roadside rocks, or by erecting poles on the road surface.
Legislation Cited: Conveyancing Act 1919 s 181A(1)
Encroachment of Buildings Act 1922
Disability Discrimination Act 1992
Cases Cited: Bland v Levi (2000) 9 BPR 17,517
Burke v Frasers Lorne Pty Ltd (2008) 14 BPR 26,11, (2008) NSWSC 988
Butler v Muddle (1995) 6 BPR 13,984
Denton v Phillpot (1990) NSW ConvR 55-543
Gohl v Hender [1930] SASR 158
Hender v Gohl & Anor [1928] SASR 325
Mantec Thoroughbreds Pty Ltd v Batur: [2009] VSC 351
Owners of Strata Plan 48754 v PD Anderson Holdings Pty Ltd [1999] NSWSC 580
Pettey v Parsons [1914] 2 Ch 653
Sertari Pty Ltd v Nirimba Developments Pty Ltd [2007] NSWCA 324
Siple v Blow (1904) 8 OLR 547
Stewart v Cooper [1986] TASSC 3; [1986] ANZ ConvR 631
Treweeke v 36 Wolseley Road Pty Ltd (1973) 128 CLR 274
Texts Cited: Jackson on the Law of Easements and Profits
Category: Principal judgment
Parties: Plaintiff:- David Peter Buckley
First Defendant:- David Francis Timbury
Second Defendant:- Susan Elsie Timbury
Representation: Counsel:
Plaintiff:- Ms L. Doust
First and Second Defendants:- Mr J. Hewitt
Solicitors:
Plaintiff:- James Edward Behringer, Harris & Co Solicitors
First and Second Defendants:- John Joseph Woodward, Turnbull Hill Lawyers

File Number(s): 2012/142622
Publication restriction: No

Judgment

David and Anne Buckley and David and Susan Timbury are neighbours on two rural properties in the picturesque Maitland Vale area of the Hunter Valley. Mr and Mrs Buckley reside in a home on the dominant tenement of a right of carriageway (the easement), which traverses Mr and Mrs Timbury's servient land and gives access to a public road, Maitland Vale Road.

Mr Buckley is the registered proprietor of the dominant tenement. He alleges as the plaintiff in these proceedings that the defendants, Mr and Mrs Timbury, the registered proprietors of the servient tenement, have obstructed the easement in four separate ways. Mr Buckley alleges that the Timburys have: (1) latched a solar powered gate across the easement; (2) blocked drains under the easement roadway with rocks thereby causing the easement to flood; (3) placed rocks, on a grassy verge area adjacent to the easement roadway, thereby preventing Mr Buckley from mowing this grassy area; and (4) erected poles in the easement roadway, which poles are said to obstruct vehicular access along 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.

Continue reading Buckley v Timbury

Details

AGLC: David Peter Buckley v David Francis Timbury [2013] NSWSC 1009
Case: [2013] NSWSC 1009
Decision Date: 01 August 2013

CaseChat Overview and Summary

Buckley v Timbury involved a dispute between the parties concerning an easement over a right of carriageway. The plaintiff claimed that the defendants, the servient owners, had interfered with their easement by latching a gate, blocking sub-surface drains, placing roadside rocks, and erecting poles on the road surface. The case was heard by the Supreme Court of New South Wales.

The court was required to determine whether the actions of the defendants constituted a real and substantial interference with the plaintiff's easement. The court had to consider the nature and extent of the interference caused by the defendants' actions and whether such interference was actionable under the law. Additionally, the court needed to assess whether the defendants' actions were reasonable in the circumstances and whether the plaintiff had a valid claim for injunctive relief.

The court found that the actions of the defendants constituted a real and substantial interference with the plaintiff's easement. The court held that the latching of a gate, blocking of sub-surface drains, placement of roadside rocks, and erection of poles on the road surface were all actionable interferences with the easement. The court also held that the defendants' actions were unreasonable and constituted a breach of the terms of the easement. As a result, the plaintiff was entitled to an injunction to prevent the defendants from interfering with the easement in the future.

The court granted the plaintiff an injunction restraining the defendants from latching a gate across the easement, from blocking the sub-surface drains, from placing rocks on the roadside, and from erecting poles on the road surface. The court also ordered the defendants to remove any existing obstructions to the easement within a specified timeframe.

Orders