Kyren Pty Ltd v Cinema Place Pty Ltd

Kyren Pty Ltd, the owner of five allotments of land, brought an action against Cinema Place Pty Ltd, the owner of adjoining land, over the right of way on Vaughan Place. Kyren sought to construct a large building across all five allotments and wished to use the right of way for the delivery of materials, as well as to perform work on the building's exterior. Additionally, Kyren intended for shop tenants to use the right of way to deliver goods to the shops once the building was complete. Cinema opposed the use of the right of way, claiming it was excessive and beyond the scope of the easement.

The court had to determine whether Kyren was entitled to use the right of way for the proposed purposes and whether the use was excessive or within the scope of the right of way. The court found that the proposed use was within the scope of the right of way and was not excessive. The court held that Kyren was entitled to exercise the right of way in the manner proposed, including bringing motor vehicles onto Vaughan Place for loading and unloading.

The court declared that Kyren was entitled to exercise a free and unrestricted right of way over the relevant part of Vaughan Place, including the use of motor vehicles for the purposes mentioned above. The court also found that Cinema had infringed and obstructed the exercise of Kyren's right of way by refusing access to Vaughan Place. However, the court did not consider it necessary to grant a more prescriptive declaration regarding the permissible exercise of the right of way, as this could lead to future disputes. The court expected Cinema to cease obstructing Kyren's rights and accept the consequences of the court's conclusions.