Gallagher v Rainbow

IN THE COURT OF APPEAL

[1992] QCA 375

SUPREME COURT OF QUEENSLAND

Appeal No. 47 of 1992

BETWEEN:

LORRAINE CHERYL GALLAGHER

Appellant (Plaintiff)

and Respondent by Cross Appeal

AND:

ALLAN ROY RAINBOW and

MAREE ELIZABETH RAINBOW

First Respondents (First Defendants)

and Appellants by Cross Appeal

AND:

OWEN PETER COALDRAKE and

LEE ANN COALDRAKE

Second Respondents (Second Defendants)

and Appellants by Cross Appeal

REASONS FOR JUDGMENT - THOMAS J.

Delivered the 3rd day of November 1992.

These proceedings involve an appeal and cross-appeal.

It will be convenient to refer to the parties as plaintiff and defendants. The parties are neighbours, although the plaintiff's property does not adjoin those of the defendants. The relevant allotments are within a recently developed estate at St. John's Wood, Brisbane. The plaintiff acquired her lot (Lot 14) in 1988 and built a substantial home upon it in 1991. The first defendants (Mr and Mrs Rainbow) are the owners of Lot 17 and the second defendants (Mr and Mrs Coaldrake) are the owners of Lot 16.

The appended plan (from ex. 1) will facilitate

description of the relevant allotments and their features.
Lots 14, 15, 16 and 17 are fairly large blocks (totalling in
all about five acres) and their only street access is to
Buckingham Street by means of narrow rectangles from each
lot, which collectively contribute to a driveway which is
for the most part about 5 metres wide. This provides a
private roadway of which each proprietor owns about a
quarter in fee simple and as to which reciprocal registered
easements have been given and taken by the owners of the
other lots. The relevant easements are in similar form.

The plaintiff purchased her lot from persons named Appleby and Mrs Rainbow (the female first defendant). The Applebys formerly owned Lot 16 but in 1987 sold it to the present owners, Mr and Mrs Coaldrake (the second defendants).

The catalyst for the present dispute was the decision by the defendants to effect further subdivision of Lots 16 and 17 into three parcels each. In the result, if the subdivision is completed, there will be eight parcels of land whose only access to Buckingham Street is via the private road whereas only four allotments are presently served by it.

The Applebys and Mrs Rainbow were joint venturers who in 1985 subdivided about sixteen acres of land in this area into twenty-three allotments, including Lots 14 to 17. The subdivisional approval obtained from the Council in 1985 was of course with respect to the twenty-three lots approved, and there was no particular condition limiting further subdivision by any owner of any lot at any future time.

However, on the evidence accepted by the learned trial judge, Mr. Appleby made certain representations to the plaintiff concerning Lots 14 to 17 before the plaintiff purchased Lot 14. These included the statement that the access road was designed in accordance with Council requirements, that there could only be four blocks, and that there could not be…