Holland and Anor v Carroll and Anor

[2014] QSC 45

SUPREME COURT OF QUEENSLAND

CITATION:

Holland & Anor v Carroll & Anor [2014] QSC 45

PARTIES:

GREGORY IAN HOLLAND AND LISA JANE HOLLAND
(applicants)
v
BEVAN JOHN CARROLL AND CARLY ANNE CARROLL
(respondents)

FILE NO/S:

SC No 10181 of 2013

DIVISION:

Supreme Court

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

20 March 2014

DELIVERED AT:

Brisbane

HEARING DATE:

14 March 2014

JUDGE:

Chief Justice

ORDER:

1.   Application filed 7 March 2014 dismissed.

2.   The respondents pay the costs of and incidental to the application of the applicants to be assessed on the standard basis.

CATCHWORDS:

REAL PROPERTY – EASEMENTS – PARTICULAR EASEMENTS AND RIGHTS – RIGHTS OF WAY – OBSTRUCTION – an easement on the property of the applicants confers a right upon the respondents to ‘enter upon and to go and return, pass and re-pass’ – the applicants, as grantors of the easement, are prohibited from obstructing the easement or restricting or preventing the respondents exercising their rights of way – the court had previously ordered that both the applicants and respondents were prohibited from obstructing free passage and access over the easement – whether the applicants’ conduct on six separate occasions obstructed the respondents’ rights of way.

PROCEDURE – CONTEMPT, ATTACHMENT AND SEQUESTRATION – CONTEMPT – WHAT CONSTITUTES – DISOBEDIENCE WITH ORDERS OF COURT – OTHER CASES – an easement on the property of the applicants confers a right upon the respondents to ‘enter upon and to go and return, pass and re-pass’ – the court had previously ordered that both the applicants and respondents were prohibited from obstructing free passage and access over the easement – whether the applicant’s conduct constituted contempt – whether the respondents’ evidence met the standard of proof required for contempt

COUNSEL:

JW Lee for the applicants
The respondents appeared on their own behalf

SOLICITORS:

Holland & Holland for the applicants
The respondents appeared on their own behalf

1. CHIEF JUSTICE: Mr and Mrs Carroll own 32A Glenrosa Road, Red Hill.  Mr and Mrs Holland live at 32B Glenrosa Road.  This application concerns the use of an easement which gives access to both properties. 

2. The easement passes over the property of Mr and Mrs Holland.  It confers a right upon persons in the position of Mr and Mrs Carroll “to enter upon and to go and return, pass and re-pass”.  It provides that parties in the position of Mr and Mrs Holland, as grantors, will not “at any time obstruct or permit to be obstructed (the area of the easement)…or do anything which will or may at any time…prevent or restrict unnecessarily (Mr and Mrs Carroll) being entitled to exercise rights of way, passage and access…”

3. Disagreements and other unfortunate incidents led to the court’s ordering on 18 November 2013 that “until further order, both the applicants (Mr and Mrs Holland) and respondents (Mr and Mrs Carroll), together with their servants and agents, are prohibited from obstructing free passage and access over easement B…”

4. Mr and Mrs Carroll now allege that Mr and Mrs Holland contravened that order by obstructing free access and passage over the easement on the following dates:  15 and 29 December 2013, 6, 16 and 17 January 2014 and 10 February 2014.  Mrs Carroll has sworn to the alleged contraventions, which involved the temporary presence on the easement of vehicles under the control of the Hollands, a taxi unloading passengers and luggage, the presence of wheelie bins, the presence of a rescue RACQ van, and such like.

5. Mrs Carroll contends that Mr and Mrs Holland have thereby contravened the order made in November 2013, and that they have done so with “deliberate defiance” and contumaciously, and asks that they be fined and ordered to pay indemnity costs.

6. In his affidavit sworn 13 March 2014 and filed by leave at the hearing, Mr Holland provided his account of the six incidents upon which Mr and Mrs Carroll rely.  On Mr Holland’s account, his family’s use of the easement was for short periods, with either no resultant obstruction to the Carroll’s access, or short-term limitations, save for the incident involving the RACQ, where on Mr Holland’s account, Mrs Carroll acted in an obstinate and uncooperative way.

7. I reserved my decision so that I could carefully re-read the affidavits.  In the result, I am not satisfied that Mr and Mrs Holland have contravened the order made on 18 November 2013, in that I am not satisfied that they obstructed free passage and access over the easement.  On most of the occasions, Mr and Mrs Carroll were not seeking access for themselves or anyone else.  Had they sought access, the limited presence of the Holland party would not have unduly delayed it.  There is no basis for concluding that the Hollands deliberately set out to frustrate the Carroll’s access to the easement.

8. I fear that the approach of Mr and Mrs Carroll may be based on a misconception that the Hollands must remain off the easement lands, leaving them free at all times lest the Carrolls wish to pass over them.  That is not what the easement says, and it is not what the order made by the court contemplated. 

9. I need not deal in detail with the technical objections taken to the application, beyond saying that I do not consider the instances of alleged contempt were adequately particularized in paragraph 2.2 of the application (where only dates are provided), and that much of the affidavit material was inadmissible.  An application of this character must descend to the particularity of an indictment, and the evidence supporting it must be strictly admissible, acknowledging the high standard of proof.

10. In any event, for the reasons I have expressed, the application must be dismissed.  I order that the application filed 7 March 2014 be dismissed.  Costs should plainly follow the event in this case.  I order that the respondents (Mr and Mrs Carroll) pay the costs of and incidental to the application of the applicants (Mr and Mrs Holland) to be assessed on the standard basis.