Draydon v Mikelsons - [2009] QSC 420

SUPREME COURT OF QUEENSLAND

CITATION:

Draydon & Anor v Mikelsons [2009] QSC 420

PARTIES:

EDWARD DRAYDON & MARGOT DRAYDON
(plaintiffs/respondents)
v
HARRY MIKELSONS
(defendant/applicant)

FILE NO/S:

BS 11820 of 2009

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

18 December 2009

DELIVERED AT:

Brisbane

HEARING DATE:

18 December 2009

JUDGE:

Chief Justice

ORDERS:

1. that the claim for the declaration in paragraph one of the claim filed 21 October 2009 be refused.

2. that the plaintiffs pay the defendant’s costs of and incidental to the defendant’s application filed 19 November 2009, to be assessed on the standard basis.

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – SUMMARY JUDGMENT – defendant’s application for summary judgment – whether easement robs servient tenants of the use of their land

Property Law Act 1974 s 181
Uniform Civil Procedure Rules 1999 r 293

Bolton Properties Pty Ltd v J K Investments (Australia) Pty Ltd [2009] QCA 135, cited
Brydall Pty Ltd v Owners of Strata Plan 66794 (2009) 14 BPR 26, cited
Mercantile General Life Reassurance Cov Permanent Trustee Australia Ltd (1988) 4 BPR 9534, cited
Moncrieff v Jamieson (2007) 1 WLR 2620, considered
Weigall v Toman [2008] 1 Qd R 192, considered

COUNSEL:

M D Martin for the plaintiff
R I M Lilley SC for the defendant

SOLICITORS:

DLA Phillips Fox for the plaintiff
Conroy & Associates for the defendant

CHIEF JUSTICE: The plaintiffs, Mr and Mrs Draydon, have commenced a proceeding claiming a declaration that an easement over part of their property (lot 21), in favour of the owner of lot 22, who is the defendant Mr Mikelsons, is invalid. The basis that the alleged invalidity is that because of the existence of the easement, the Draydons have “lost the reasonable use of their land”. Alternatively they seek an order under s 181 of the Property Law Act 1974 modifying the easement so that it “does not grant exclusive use thereof to the defendant”. Mr Mikelsons seeks an order, by application filed 19 November 2009, under Rule 293 of the Uniform Civil Procedure Rules 1999, for judgment in his favour in relation to the Draydons’ claim for that declaration.

To enter judgment summarily under that provision, the court must first be satisfied that the plaintiffs have no real prospect of succeeding in securing that declaration, and that there is no need for a trial in respect of that claim. The approach to be adopted on such an application was recently considered by the Court of Appeal in Bolton Properties Pty Ltd v J K Investments (Australia) Pty Ltd [2009] QCA 135.

The facts are not relevantly in dispute. But for the easement, Mr Mikelsons’ lot 22 is landlocked. The easement, which is registered, covers an eight metre wide strip down the edge of the Draydons’ property (lot 21), connecting the Mikelsons land to Herron Road. The area of lot 21 is one hectare, and…

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 Draydon v Mikelsons

Details

AGLC: Draydon v Mikelsons [2009] QSC 420
Case: [2009] QSC 420
Decision Date: 18 December 2009

CaseChat Overview and Summary

In the case of Draydon versus Mikelsons, the plaintiff sought a declaration regarding an easement over land owned by the defendant. The dispute was heard and determined in the Supreme Court of Queensland. The plaintiff, Draydon, sought to establish the existence of an easement, which the defendant, Mikelsons, contested, leading to the defendant filing an application for summary judgment.

The primary legal issue before the court was whether the easement, if it existed, would deprive the servient tenants of the use of their land. The court had to assess the nature and extent of the easement and determine whether it was reasonable and necessary for the benefit of the dominant tenement. The court also needed to consider whether the easement would impose an undue burden on the servient land.

The court found that the easement did not deprive the servient tenants of the use of their land, as it was not so extensive as to render the land useless. The court concluded that the easement was reasonable and necessary for the benefit of the dominant tenement, and the burden it imposed on the servient land was not disproportionate. As such, the court dismissed the plaintiff's claim and ordered that the defendant's costs be paid by the plaintiff. The court also ordered that the plaintiffs pay the defendant's costs of and incidental to the defendant's application, to be assessed on the standard basis.

Orders

Orders of the court

1. that the claim for the declaration in paragraph one of the claim filed 21 October 2009 be refused.

2. that the plaintiffs pay the defendant’s costs of and incidental to the defendant’s application filed 19 November 2009, to be assessed on the standard basis.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Draydon & Anor v Mikelsons [2009] QSC 420
PARTIES:	EDWARD DRAYDON & MARGOT DRAYDON (plaintiffs/respondents) v HARRY MIKELSONS (defendant/applicant)
FILE NO/S:	BS 11820 of 2009
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	18 December 2009
DELIVERED AT:	Brisbane
HEARING DATE:	18 December 2009
JUDGE:	Chief Justice
ORDERS:	1. that the claim for the declaration in paragraph one of the claim filed 21 October 2009 be refused. 2. that the plaintiffs pay the defendant’s costs of and incidental to the defendant’s application filed 19 November 2009, to be assessed on the standard basis.
CATCHWORDS:	PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – SUMMARY JUDGMENT – defendant’s application for summary judgment – whether easement robs servient tenants of the use of their land Property Law Act 1974 s 181 Uniform Civil Procedure Rules 1999 r 293 Bolton Properties Pty Ltd v J K Investments (Australia) Pty Ltd [2009] QCA 135, cited Brydall Pty Ltd v Owners of Strata Plan 66794 (2009) 14 BPR 26, cited Mercantile General Life Reassurance Cov Permanent Trustee Australia Ltd (1988) 4 BPR 9534, cited Moncrieff v Jamieson (2007) 1 WLR 2620, considered Weigall v Toman [2008] 1 Qd R 192, considered
COUNSEL:	M D Martin for the plaintiff R I M Lilley SC for the defendant
SOLICITORS:	DLA Phillips Fox for the plaintiff Conroy & Associates for the defendant