SUPREME COURT OF QUEENSLAND
CITATION:
Fanigun Pty Ltd v Woolworths Ltd & Anor; Woolworths Ltd v Fanigun Pty Ltd & Anor [2006] QSC 28
PARTIES:
FANIGUN PTY LTD (ACN 009 986 403)
(applicant)
v
WOOLWORTHS LIMITED (ACN 000 014 675)
(first respondent)
ISPT PTY LTD (ACN 064 041 283)
(second respondent)
WOOLWORTHS LIMITED (ACN 000 014 675)
(applicant)
v
FANIGUN PTY LTD (ACN 009 986 403)
(first respondent)
ISPT PTY LTD (ACN 064 041 283)
(second respondent)FILE NO/S:
BS3893 of 2005
BS5548 of 2005DIVISION:
Trial Division
PROCEEDING:
Originating applications
DELIVERED ON:
28 February 2006
DELIVERED AT:
Brisbane
HEARING DATE:
15-16 August and 9 September 2005
JUDGE:
Mullins J
ORDERS:
1. It is declared that the manner in which Woolworths Limited has conducted the business of the service station on Lot 1 on Survey Plan 156962 in the County of Stanley, Parish of Nundah (“Lot 1”) situated at 180 Braun Street, Deagon since 1 July 2004 has resulted in its customers from time to time stopping their motor vehicles for a time measurable in seconds or minutes on the land described as subdivisions B and C on RP102629 in the County of Stanley, Parish of Nundah (“the subject land”) whilst queuing before moving towards the petrol bowsers on Lot 1 and Woolworths Limited has thereby authorised such customers who do so stop their motor vehicles on the subject land to use the subject land in a way which is not permitted by registered easement number 601790395 (“the easement”) and has breached condition 1 of the easement on each occasion that such queuing has occurred.
2. Application 3893 of 2005 against the second respondent is dismissed.
3. The issue of the exact terms of the injunction to be granted in application 3893 of 2005 against the first respondent is adjourned to a date to be fixed.
4. Application 5548 of 2005 is dismissed.
5. The question of costs of applications 3893 of 2005 and 5548 of 2005 is adjourned to a date to be fixed.
6. Liberty to any party to apply on 2 days’ notice in writing to the other parties.
CATCHWORDS:
REAL PROPERTY – EASEMENTS – EASEMENTS GENERALLY – PARTICULAR EASEMENTS AND RIGHTS – RIGHTS OF WAY – OBSTRUCTION – CONSTRUCTION OF EASEMENTS – where easement provides right to go, pass and repass over servient tenement in order to access service station on dominant tenement in common with the rights of access of the owner or occupier of servient tenement – where easement subject to a condition that neither grantor nor grantee will obstruct the use of the servient tenement - whether right to go, pass and repass over servient tenement permits customers of the service station to stop their motor vehicles on the servient tenement whilst queuing to gain access to petrol bowsers on dominant tenement – whether an implied ancillary right – where such queuing of motor vehicles on a repetitive basis amounts to an obstruction of the right of way
TRESPASS – TRESPASS TO LAND…
Keep reading for free
Create a free CaseChat account to read Fanigun Pty Ltd v Woolworths Ltd and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2006] QSC 28
- Decision Date
CaseChat Overview and Summary
The court found that the queuing of vehicles did not constitute an implied ancillary right and that such queuing amounted to an obstruction of the right of way. It was held that the customers who stopped their vehicles on the servient tenement while queuing to access the petrol bowsers were trespassing, and that the tenant had authorised this conduct. The court further found that the queuing of vehicles substantially and unreasonably interfered with the use of the right of way, amounting to a private nuisance. However, the court held that the owner of the servient tenement could not restrain the tenant from authorising the nuisance or the trespass, as the owner was not also the occupier. The court also found that the landlord was not liable for the tenant's conduct, as the tenant disputed the claim that it had authorised the nuisance or the trespass.
The court granted a declaration that Woolworths had authorised its customers to trespass on the servient tenement and had breached the easement by allowing them to queue on the servient tenement. The application for an injunction against the second respondent was dismissed, and the issue of the exact terms of the injunction against the first respondent was adjourned. The application for a statutory right of user was also dismissed. The question of costs was adjourned, and liberty to apply was granted to any party.
Orders
Orders of the court
1. It is declared that the manner in which Woolworths Limited has conducted the business of the service station on Lot 1 on Survey Plan 156962 in the County of Stanley, Parish of Nundah (“Lot 1”) situated at 180 Braun Street, Deagon since 1 July 2004 has resulted in its customers from time to time stopping their motor vehicles for a time measurable in seconds or minutes on the land described as subdivisions B and C on RP102629 in the County of Stanley, Parish of Nundah (“the subject land”) whilst queuing before moving towards the petrol bowsers on Lot 1 and Woolworths Limited has thereby authorised such customers who do so stop their motor vehicles on the subject land to use the subject land in a way which is not permitted by registered easement number 601790395 (“the easement”) and has breached condition 1 of the easement on each occasion that such queuing has occurred.
2. Application 3893 of 2005 against the second respondent is dismissed.
3. The issue of the exact terms of the injunction to be granted in application 3893 of 2005 against the first respondent is adjourned to a date to be fixed.
4. Application 5548 of 2005 is dismissed.
5. The question of costs of applications 3893 of 2005 and 5548 of 2005 is adjourned to a date to be fixed.
6. Liberty to any party to apply on 2 days’ notice in writing to the other parties.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.