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Burke v Frasers Lorne Pty Ltd

Burke v Frasers Lorne Pty Ltd

Case [2008] NSWSC 988 12 August 2008

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CITATION: Burke v Frasers Lorne Pty Ltd [2008] NSWSC 988

HEARING DATE(S): 11 August 2008

JURISDICTION: Equity Division

JUDGMENT OF: Brereton J

EX TEMPORE JUDGMENT DATE: 12 August 2008

DECISION: Defendant ordered to return right of carriageway to pre-existing asphalt surface.

CATCHWORDS: REAL PROPERTY – EASEMENTS – right of carriageway servicing residential dwellings – where carriageway over servient land has been asphalt for many years – where servient owner replaces asphalt with reinforced turf – where reinforced turf though inferior to asphalt could provide reasonable access to dominant land – where existing asphalt surface was a reasonable user of the carriageway – rights of dominant and servient owners in respect of rights of carriageway – whether servient owner can unilaterally change surface of right of carriageway – where it was recommended that the reinforced turf not be used for a growing season and could be slippery when wet before that time – whether that amounted to a “psychological obstruction”. - INTERLOCUTORY INJUNCTIONS – mandatory interlocutory injunctions – application for injunction to return turfed carriageway to asphalt surface – strongly arguable case – Courts should attempt to settle questions of law on interlocutory applications when possible – balance of convenience.

CATEGORY: Principal judgment

CASES CITED: Business World Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499
Butler v Muddle (1995) 6 BPR 13,984; [1996] ANZ ConvR 147; (1995) NSW ConvR 55-745
Chiu v Healey [2003] NSWSC 857
D’Arcy v Burelli Investments Pty Ltd (1987) 8 NSWLR 317
Frasers Lorne Pty Ltd v Burke [2008] NSWSC 743
Gerrard v Cooke (1806) 2 Bos & Pul (NR) 109; (1806) 127 ER 565
Keefe v Amor [1965] 1 QB 334
Kirkjian v Towers (NSWSC, Waddell CJ in Eq, 6 July 1987, unreported)
Lawrence v Griffiths (1987) 47 SASR 455
Mills v Silver [1991] Ch 271
Newcomen v Coulson (1877) LR 5 Ch D 133
Pettey v Parsons [1914] 2 Ch 653
Powell v Langdon (1944) 45 SR (NSW) 136
Prospect County Council v Cross (1990) 21 NSWLR 601
Senhouse v Christian (1787) 1 Term Rep 560; (1787) 99 ER 1251
Sertari Pty Ltd v Nirimba Developments Pty Ltd [2007] NSWCA 324
Spear v Rowlett [1924] NZLR 801
Trewin v Felton [2007] NSWSC 851
Zenere v Leate (1980) 1 BPR 9300

TEXTS CITED: Meagher, Heydon & Leeming, Meagher Gummow & Lehane’s Equity Doctrines & Remedies, 4th Ed (2002) Butterworths

PARTIES: Joyce Goldsworthy Burke (first plaintiff)
Kim Huong Dinh (second plaintiff
Donald Keith Martin (third plaintiff)
Frasers Lorne Pty Ltd (defendant)

FILE NUMBER(S): SC 4117/08

COUNSEL: Ms V Culkoff (plaintiffs)
Mr T S Hale SC (defendant)

SOLICITORS: Steven Klinger (plaintiffs)
Holding Redlich (defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRERETON J

Tuesday, 12 August 2008

4117/08 Burke v Frasers Lorne Pty Ltd

JUDGMENT (ex tempore)

1 HIS HONOUR: The first plaintiff Mrs Joyce Goldsworthy Burke is the registered proprietor of Lot 4 in Deposited Plan 547371, on which stands her home at 23 Lorne Avenue, Killara. 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 Burke v Frasers Lorne Pty Ltd

Details

AGLC: Burke v Frasers Lorne Pty Ltd [2008] NSWSC 988
Case: [2008] NSWSC 988
Decision Date: 12 August 2008

CaseChat Overview and Summary

In the case of Burke v Frasers Lorne Pty Ltd, the dispute arose between the plaintiff, who owns a residential property, and the defendant, a property developer, regarding the maintenance and surface of a carriageway that serves the plaintiff's property. The matter was heard in the Supreme Court of Victoria. The plaintiff alleged that the defendant, without consent, had replaced the asphalt surface of the carriageway with reinforced turf, which the plaintiff claimed was an inferior surface and could potentially hinder access to his property.

The primary legal issues before the court were whether the servient owner could unilaterally change the surface of the right of carriageway and, if so, whether the change to reinforced turf constituted a "psychological obstruction". The court was also required to decide whether the plaintiff had established a strongly arguable case for an interlocutory mandatory injunction to compel the defendant to return the surface of the carriageway to asphalt.

In delivering the judgment, the court found that while the reinforced turf could provide reasonable access to the plaintiff's property, the existing asphalt surface was a reasonable user of the right of carriageway. The court held that the servient owner did not have the unilateral right to change the surface of the carriageway. Furthermore, the court determined that the plaintiff had established a strongly arguable case for the injunction. The court also noted that it should attempt to settle questions of law on interlocutory applications when possible and considered the balance of convenience in its decision-making.

The court ordered that the defendant was to restore the surface of the carriageway to its previous asphalt condition. The court also noted that the potential slipperiness of the reinforced turf when wet and the recommendation that it not be used for a growing season amounted to a "psychological obstruction".

Orders