Fanigun Pty Ltd v Woolworths Ltd

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.