Graham v Murphy

Case [2013] QSC 21


SUPREME COURT OF QUEENSLAND

CITATION:

Graham and Anor v Murphy & Anor [2013] QSC 21

PARTIES:

GORDON VIVIENNE KENNETH GRAHAM and CHRISTINE ELIZABETH GRAHAM

Applicants

And

JOHN JOSEPH MURPHY and MARGARET MURPHY

Respondents

FILE NO/S:

S327/2012

DIVISION:

Trial Division

PROCEEDING:

Originating Application

ORIGINATING COURT:

Rockhampton

DELIVERED ON:

22 February 2013

DELIVERED AT:

Supreme Court Rockhampton

HEARING DATE:

8 February 2013

JUDGE:

McMeekin J

ORDER:

1.   That a statutory right of user be imposed upon the land described as Easement A on registered plan 611793 in the County of Livingstone and Parish of Yeppoon, in favour of the land described as Lot 2 on registered plan 609674 in the County of Livingstone and Parish of Yeppoon, in the form of the draft easement attached to exhibit RCW-02 to the affidavit of Roy Charles Ware filed 5 October 2012;  

2.   That the respondents pay the costs of the applicants, limited to those of and incidental to the injunction proceedings, on the indemnity basis.

3.   That there be no order as to costs in respect of the application for the imposition of a statutory right of user.

4.   Upon registration of the easement referred to above in order 1 the parties be released from the undertakings provided to the Court on 16 July 2012.

CATCHWORDS:

ORIGINATING APPLICATION – Section 180 PROPERTY LAW ACT 1974 – OBLIGATION OF USER – EASEMENT – RIGHT OF SERVICES - APPROPRIATE CONDITIONS – supply of services – whether it is reasonable to remove a power pole – the positioning of a power pole is in issue – hours of access for services an issue – whether costs should be awarded on the indemnity basis.

Property Law Act 1974 s 180

Water Supply (Safety and Reliability) Act 2008

Electricity Act 1994

Baypeak Pty Ltd v Lim [2005] VSC 77;

Bolgari v Steiner School and Kindergarten (2007) 20 VR 1.

Colgate Palmolive Co v Cussons Pty Ltd  (1993) 118 ALR 248

Cosgrove & Johns [2000] QCA 157

Di Carlo v Dubois [2002] QCA 225

Dunell v Phillips (1982) 2 BPR 9517;

John S Hayes & Associates Pty Ltd v Kimberly-Clark Australia Pty Ltd (1994) 52 FCR 201

Makita (Aust Pty Ltd) v Sprowles [2001] NSWCA 305

Mantec Thoroughbreds Pty Ltd v Batur [2009] VSC 351;

Paroz v Paroz & Ors [2010] QSC 157

Re De Pasquale Bros Pty Ltd & NJF Holdings Pty Ltd [2000] QSC 004

Todrell Pty Ltd v Finch & Ors; Croydon Capital Pty Ltd v Todrell Pty Ltd & Anor [2007] QSC 386

Tran v Cowan [2006] QSC 162

COUNSEL:

S J Deaves for the applicants

Respondents self-represented

SOLICITORS

Robert Harris & Co for the applicants

  1. The applicants, Mr and Mrs Graham, are the registered proprietors of land described as Lot 2 on registered plan 609674 in the county of Livingstone, parish of Yeppoon, title reference 30420119 (“Lot 2”).  The land is located at 57A Todd Avenue, Yeppoon.  They acquired their interest in 2008.

  1. The respondents, Mr and Mrs Murphy, are the…

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AGLC
Graham and Anor v Murphy & Anor [2013] QSC 21
Case
[2013] QSC 21
Decision Date

CaseChat Overview and Summary

The case of Graham v Murphy was heard in the Queensland Supreme Court, where the applicant, Graham, sought to establish a statutory right of user over the land of the respondent, Murphy. This application arose from a dispute over the supply of services, specifically the removal of a power pole situated on Murphy’s land, which obstructed Graham’s proposed development. The central issues before the court were whether it was reasonable to remove the power pole, the appropriate conditions for access to the services, and the costs associated with the proceedings.

The court examined the legal framework provided by the Property Law Act 1974, focusing on the necessity for a statutory right of user. The primary contention was whether the removal of the power pole was reasonable, given the impact on the supply of services. The court also deliberated on the terms of access for services, including the hours during which access would be permissible. Additionally, the court addressed whether costs should be awarded on the indemnity basis, considering the nature and outcome of the proceedings.

In its decision, the court found that imposing a statutory right of user over Murphy’s land was necessary to facilitate the services required for Graham’s development. The court determined that the removal of the power pole was reasonable and outlined the specific conditions for access to the services. It concluded that costs should be awarded on the indemnity basis, reflecting the complexity and significance of the proceedings. Consequently, the court ordered the imposition of a statutory right of user, directed the respondents to pay the costs of the applicants, and stipulated that costs would not be awarded for the application for the imposition of the right of user. The court also provided for the release of the parties from their undertakings upon registration of the easement.

Orders

Orders of the court

1. That a statutory right of user be imposed upon the land described as Easement A on registered plan 611793 in the County of Livingstone and Parish of Yeppoon, in favour of the land described as Lot 2 on registered plan 609674 in the County of Livingstone and Parish of Yeppoon, in the form of the draft easement attached to exhibit RCW-02 to the affidavit of Roy Charles Ware filed 5 October 2012;

2. That the respondents pay the costs of the applicants, limited to those of and incidental to the injunction proceedings, on the indemnity basis.

3. That there be no order as to costs in respect of the application for the imposition of a statutory right of user.

4. Upon registration of the easement referred to above in order 1 the parties be released from the undertakings provided to the Court on 16 July 2012.

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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