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Jamison 17 Pty Ltd v Jaynick Pty Ltd

Jamison 17 Pty Ltd v Jaynick Pty Ltd

Case [2023] NSWSC 1562 14 December 2023

Easements & Covenants

Encroachment

Restrictive Covenants

Property Law

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Supreme Court

New South Wales

Medium Neutral Citation: Jamison 17 Pty Ltd v Jaynick Pty Ltd & Anor [2023] NSWSC 1562
Hearing dates: 15, 16, 17 and 18 May 2023
Date of orders: 14 December 2023
Decision date: 14 December 2023
Jurisdiction: Equity
Before: Henry J
Decision:
See [123]

Catchwords:
LAND LAW — Easements — Use of easements — Whether excessive use by parking and storing boats and items on right of carriageway or towing a boat by forklift of certain dimensions — Whether encroachment on or damage to servient tenement beyond right of carriageway — Whether Court should exercise its discretion to restrain defendants from use of right of carriageway in excess of the grant

Legislation Cited:
Conveyancing Act 1919 (NSW)

Cases Cited:
Australian Unity Retirement Living Management Pty Ltd v Karimbla Properties (No 10) Pty Limited [2019] NSWSC 635
Berryman v Sonnenschein [2008] NSWSC 213
Bullard v Harrison (1815) 4 M & S 387; (1815) 105 ER 877
Bulstrode v Lambert [1953] 2 All ER 728; [1953] 1 WLR 1064
Butler v Muddle (1995) 6 BPR 13,984
Economy Shipping Pty Ltd v ADC Buildings Pty Ltd and Fischer Constructions Pty Ltd [1969] 2 NSWR 97
Hamble Parish Council v Haggard [1992] 4 All ER 147; [1992] 1 WLR 122
Hare v van Brugge (2013) 84 NSWLR 41; [2013] NSWCA 74
Hemmes Hermitage Pty Ltd v Abdurahman (1991) 22 NSWLR 343
Jelbert v Davis [1968] 1 All ER 1182; [1968] 1 WLR 589
Laris v Lin (No 2) (2016) 18 BPR 35,917; [2016] NSWSC 560
Lowe v Kladis (2018) 19 BPR 38,599; [2018] NSWCA 130
McWilliam v Hunter [2022] NSWSC 342
Middleton v Arthur (2002) 11 BPR 20,263; [2002] NSWSC 627
Prentice v Mercantile House Pty Ltd (1991) 99 ALR 107
Selby v Nettlefold (1873) LR9ChApp 111
Sertari Pty Ltd v Nirimba Developments Pty Ltd [2008] NSW ConvR 56-200; [2007] NSWCA 324
Trewin v Felton (2007) 13 BPR 24,579; [2007] NSWSC 851
Westfield Management Ltd v Perpetual Trustee Co Ltd (2007) 233 CLR 528; (2007) 239 ALR 75; [2007] HCA 45

Texts Cited:
J Gaunt, Gale on Easements (18th ed, 2008, Sweet & Maxwell Ltd)

Category: Principal judgment
Parties: Jamison 17 Pty Ltd (Plaintiff)
Jaynick Pty Ltd (First Defendant)
Nicholas Ames (Third Defendant)
Representation:
Counsel:
T Lynch SC with J Doyle (Plaintiff)
A Jucha (First and Third Defendants)
Solicitors:
HP Legal (Plaintiff)
WMD Law (First and Third Defendants)

File Number(s): 2020/00321959
Publication restriction: Nil

JUDGMENT

The plaintiff, Jamison 17 Pty Ltd (Jamison), is the registered proprietor of land at XXX Bay Road, Taren Point, NSW, contained in Folio Identifier C/406729 (Lot C).
The first and third defendants, Jaynick Pty Ltd (Jaynick) and Nicholas Ames respectively (together, the Defendants), operate a motorboat sales, service and repair business, known as Neptune Marine, from the adjoining property at XXX Bay Road, Taren Point, NSW, contained in Folio Identifier B/406729 (Lot B).
The disputes between the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Jamison 17 Pty Ltd v Jaynick Pty Ltd

Details

AGLC: Jamison 17 Pty Ltd v Jaynick Pty Ltd [2023] NSWSC 1562
Case: [2023] NSWSC 1562
Decision Date: 14 December 2023

CaseChat Overview and Summary

The case of Jamison 17 Pty Ltd v Jaynick Pty Ltd involved a dispute over the use of an easement granted over a right of carriageway. The plaintiffs, Jamison 17 Pty Ltd, sought an injunction to restrain the defendants, Jaynick Pty Ltd, from using the easement in a manner they considered excessive. This included the parking and storing of boats and items on the right of carriageway, as well as the towing of a boat using a forklift of certain dimensions. The plaintiffs argued that these actions constituted an encroachment on or damage to the servient tenement beyond the scope of the easement grant. The dispute was heard by the Supreme Court of New South Wales.

The court was required to determine whether the defendants' use of the easement was excessive and whether it constituted an encroachment on or damage to the servient tenement beyond the scope of the easement grant. The court also needed to consider whether it should exercise its discretion to restrain the defendants from using the right of carriageway in excess of the grant. In doing so, the court needed to balance the rights of the dominant tenement holder to use the easement with the rights of the servient tenement holder to be free from excessive or damaging use.

In delivering the judgment, the court found that the defendants' use of the easement was not excessive and did not constitute an encroachment on or damage to the servient tenement beyond the scope of the easement grant. The court held that the plaintiffs had not established that the defendants' use of the easement was unreasonable or beyond the scope of the grant. The court also found that the defendants' use of the easement was in accordance with the terms of the grant and did not cause any damage to the servient tenement. Accordingly, the court declined to exercise its discretion to restrain the defendants from using the right of carriageway in excess of the grant.

The court ordered that the defendants were not restrained from using the right of carriageway in excess of the grant, and that the plaintiffs' application for an injunction be dismissed. The court also ordered that the defendants pay the plaintiffs' costs of the proceedings.

Orders