Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: FitzGerald v Foxes Lane (NSW) Pty Ltd [2025] NSWCA 212 Hearing dates: 27 June 2025 Date of orders: 18 September 2025 Decision date: 18 September 2025 Before: Leeming JA at [1];
Kirk JA at [26];
Adamson JA at [163].Decision: (1) Appeal allowed in part.
(2) Set aside orders 1 and 5 of the Supreme Court made on 21 October 2024, and order 2 made on 18 November 2024, and in lieu thereof make the following orders:
(a) The defendants are restrained from causing crops to be planted or for “tramlines” to be created or maintained on a five metre wide vehicular track along the right of carriageway which burdens the first defendant’s properties on Lots 10 and 11 in Deposited Plan 1163015 and benefits the plaintiff’s property on Lot 19 in Deposited Plan 817727 (“Right of Carriageway”).
(b) Declare that the plaintiff may undertake work on a five metre wide vehicular track along the Right of Carriageway in the nature of light grading or drag bucketing in order to even out the tramlines running across the track.
(c) The plaintiff is restrained from undertaking grading, drag bucketing or ploughing on the Right of Carriageway unless he has given the servient tenement owner at least 14 days written notice of the works he proposes to undertake.
(d) Defendants to pay 75% of the plaintiff’s costs of the proceedings incurred from 21 December 2022.
(3) Respondents to pay 50% of the appellant’s costs of the appeal.
Catchwords: LAND LAW — easements — substantial interference with easements — whether cropping over a right of carriageway constituted a substantial interference with dominant owner’s rights — remedies for substantial interference — whether dominant owner entitled to construct proposed crowned road — width of road which the dominant owner is entitled to undertake work on — whether 14 day notice period prior to undertaking work expressed as part of declaration is justifiable
TORTS — nuisance — trespass — whether appellant entitled to have the full width of the right of carriageway cleared — whether appellant entitled to greater amenity damages — whether appellant entitled to exemplary damages
APPEALS — point not taken below — pleadings — whether issue of substantial interference raised before primary judge and understood to be in issue
Legislation Cited: Conveyancing Act 1919 (NSW), ss 88B, 89, 181A, Part 1, Schedule 8.
Water Management Act 2000 (NSW)
Cases Cited: Butler v Muddle (1995) 6 BPR 13,984
Dare v Pulham (1982) 148 CLR 658; [1982] HCA 70
Dickson v Petrie [2025] NSWCA 110
DSHE Holdings Ltd (Receivers and Managers) (in liq) v Potts (No 2) [2022] NSWCA 258
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Hare v van Brugge (2013) 84 NSWLR 41; [2013] NSWCA 74
Lee v Lee (2019) 266 CLR 129; [2019] HCA 28
Mantec Thoroughbreds Pty Ltd v Batur (2009) 25 VR 507; [2009] VSC 351
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- AGLC
- FitzGerald v Foxes Lane (NSW) Pty Ltd [2025] NSWCA 212
- Case
- [2025] NSWCA 212
- Decision Date
CaseChat Overview and Summary
The central legal issues before the Court of Appeal were whether the respondent's cropping activities over the right of carriageway amounted to a substantial interference with the appellant's rights, and consequently, whether the appellant was entitled to construct the proposed crowned road. Further issues included the appropriate width of the carriageway over which the appellant could undertake work, and the justification for a 14-day notice period for such works. The court also considered whether the appellant was entitled to have the full width of the carriageway cleared, and whether amenity or exemplary damages were warranted. A preliminary issue was whether the question of substantial interference had been properly raised and understood as an issue before the primary judge.
The Court of Appeal acknowledged its duty to form its own view on the legal issues in light of the facts. The court's reasoning and the legal principles applied would have addressed the nature of easements, the threshold for substantial interference, and the scope of rights conferred by a right of carriageway. The court would have considered the extent to which the dominant owner's use of the carriageway could be accommodated alongside the servient owner's activities, and the remedies available for breaches of easement rights.
The judgment of the Court of Appeal would have determined the ultimate orders regarding the appellant's entitlement to construct the crowned road, the permissible width of such construction, and any damages awarded.
Orders
Orders of the court
of her Honour: Lee v Lee at [56]. It is the duty of this Court to reach its own view on the legal issues in dispute in light of the facts.
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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