Fanigun Pty Ltd v Woolworths Ltd - [2006] QSC 28

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 2005

DIVISION:

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…

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.

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Details

Case: [2006] QSC 28
Decision Date: 28 February 2006

CaseChat Overview and Summary

Fanigun Pty Ltd brought proceedings against Woolworths Limited, the tenant of a service station, concerning the alleged improper use of an easement over the subject land, which is owned by Fanigun. The easement provides a right of way to access the service station. The court had to determine several legal issues, including whether the right to go, pass and repass over the servient tenement permitted customers to stop their vehicles while queuing to access the petrol bowsers, and whether this constituted an obstruction of the right of way. The court also had to consider whether the queuing of vehicles amounted to a trespass or a nuisance, and whether the owner of the servient tenement could restrain such activities if they were authorised by the tenant.

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.

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 2005
DIVISION:	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…