M Salazar Properties Pty Ltd v Jeffs - [2024] QSC 9

SUPREME COURT OF QUEENSLAND

CITATION:

M Salazar Properties Pty Ltd v Jeffs [2024] QSC 9

PARTIES:

M Salazar Properties Pty Ltd

(applicant)

v

Justin Noel Jeffs

(respondent)

FILE NO:

BS10187/22

DIVISION:

Trial division

PROCEEDING:

Originating application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

29 February 2024

DELIVERED AT:

Brisbane

HEARING DATE:

7, 8 September 2023

JUDGE:

Hindman J

ORDERS:

1. On conditions to be recorded in a final order, the Court imposes on Lot 197, RP116684, title reference 14287174 a statutory right of user pursuant to section 180(1) of the Property Law Act 1974 (Qld), in favour of Lot 199, RP116684, title reference 14287176.

2. The parties are directed to, by 4pm on 27 March 2024, deliver by email to the associate to Hindman J draft orders agreed by the parties to reflect the Court’s reasons or if there is not agreement, draft orders each party contends reflects the Court’s reasons.

3. The parties are directed to, by 4pm on 27 March 2024, advise the associate to Hindman J by email if they wish to be heard in relation to the issue of the costs of the proceeding.

CATCHWORDS:
REAL PROPERTY – EASEMENTS GENERALLY – GRANT OF EASEMENT - STATUTORY RIGHT OF USER - where applicant seeks grant of easement pursuant to s. 180 of the Property Law Act 1974 (Qld) – where an easement was sought over the servient land for stormwater drainage - whether the applicant had made out the requirements in s. 180 of the Property Law Act 1974 (Qld) - whether compensation offered for burdening the servient land is sufficient - whether the refusal of the owner of the servient land is unreasonable - where applicant seeks the Court to determine the terms of the easement, including compensation, on just and fair terms.

Property Law Act 1974 (Qld), s. 180

2040 Logan Road Pty Ltd v Body Corporate for Paddington Mews CTS 39149 [2016] QSC 40
Grittner & anor v Hadley [2008] QSC 268
Mitchell v Boutagy [2001] NSWSC 1045
Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2012] NSWCA 445
Naylor & anor v Pierce & anor [2010] QSC 399
Pacific Coast Investment Pty Ltd v Cowlishaw [2005] QSC 259
Peulen & anor v Agius & anor [2015] QSC 137
Rainbowforce Pty Ltd v Skyton Holdings Pty Ltd [2010] NSWLEC 2
Re Kindervater [1996] ANZ Conv R 331
Tregoyd Gardens Pty Ltd v Jervis (1997) 8 BPR 15,845
Ward v Hull [2019] QSC 32

Wengarin Pty Ltd v Bryon Shire Council [1999] NSWSC 485

COUNSEL:

Nil

SOLICITORS:
ADVOCATES
(with leave):

Nil

J Merlo for the applicant
D Jeffs for the respondent

Introduction

It happens from time to time that the owner of land will require some form of access to, or use of, part of neighbouring land, where that access or use is not agreed by the neighbour. Section 180 of the Property Law Act 1974 (Qld) (PLA) is the legislature’s answer to that perceived problem. Subsection (1) provides:
180Imposition of…

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.

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Details

Case: [2024] QSC 9
Decision Date: 29 February 2024

CaseChat Overview and Summary

The case of M Salazar Properties Pty Ltd v Jeffs involves the applicant, M Salazar Properties Pty Ltd, seeking to establish a statutory right of user over the servient land owned by the respondent, Jeffs, for the purpose of stormwater drainage. The dispute was heard in the Queensland Land Court, which was tasked with determining whether the applicant had met the statutory criteria set out in section 180 of the Property Law Act 1974 (Qld). The court also needed to assess whether the compensation offered by the applicant was adequate, and if the refusal by the servient land owner was unreasonable. Furthermore, the applicant sought for the court to establish the terms of the easement, including the compensation, on just and fair terms.

The court considered the statutory criteria for the grant of an easement under section 180 of the Property Law Act 1974 (Qld), focusing on whether the applicant had proven the necessity and reasonableness of the proposed easement. It examined the sufficiency of the compensation offered to the servient land owner and evaluated whether the refusal of the servient land owner was unreasonable. The court balanced the rights and interests of both parties to determine if the imposition of a statutory right of user was warranted. It concluded that the applicant had demonstrated the necessity for the easement and that the refusal to grant it was unreasonable.

Following its reasoning, the court imposed a statutory right of user on the servient land in favour of the dominant land. The court mandated that the parties draft orders reflecting its reasons and submit them by a specified deadline. Additionally, the parties were given the option to be heard regarding the costs of the proceedings. The court's decision was based on the statutory framework provided by section 180 of the Property Law Act 1974 (Qld) and the specific circumstances of the case, ensuring that the rights of both the servient and dominant land owners were considered.

Orders

Orders of the court

1. On conditions to be recorded in a final order, the Court imposes on Lot 197, RP116684, title reference 14287174 a statutory right of user pursuant to section 180(1) of the Property Law Act 1974 (Qld), in favour of Lot 199, RP116684, title reference 14287176.

2. The parties are directed to, by 4pm on 27 March 2024, deliver by email to the associate to Hindman J draft orders agreed by the parties to reflect the Court’s reasons or if there is not agreement, draft orders each party contends reflects the Court’s reasons.

3. The parties are directed to, by 4pm on 27 March 2024, advise the associate to Hindman J by email if they wish to be heard in relation to the issue of the costs of the proceeding.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	M Salazar Properties Pty Ltd v Jeffs [2024] QSC 9
PARTIES:	M Salazar Properties Pty Ltd (applicant) v Justin Noel Jeffs (respondent)
FILE NO:	BS10187/22
DIVISION:	Trial division
PROCEEDING:	Originating application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	29 February 2024
DELIVERED AT:	Brisbane
HEARING DATE:	7, 8 September 2023
JUDGE:	Hindman J
ORDERS:	1. On conditions to be recorded in a final order, the Court imposes on Lot 197, RP116684, title reference 14287174 a statutory right of user pursuant to section 180(1) of the *Property Law Act 1974* (Qld), in favour of Lot 199, RP116684, title reference 14287176. 2. The parties are directed to, by 4pm on 27 March 2024, deliver by email to the associate to Hindman J draft orders agreed by the parties to reflect the Court’s reasons or if there is not agreement, draft orders each party contends reflects the Court’s reasons. 3. The parties are directed to, by 4pm on 27 March 2024, advise the associate to Hindman J by email if they wish to be heard in relation to the issue of the costs of the proceeding.
CATCHWORDS:	REAL PROPERTY – EASEMENTS GENERALLY – GRANT OF EASEMENT - STATUTORY RIGHT OF USER - where applicant seeks grant of easement pursuant to s. 180 of the Property Law Act 1974 (Qld) – where an easement was sought over the servient land for stormwater drainage - whether the applicant had made out the requirements in s. 180 of the Property Law Act 1974 (Qld) - whether compensation offered for burdening the servient land is sufficient - whether the refusal of the owner of the servient land is unreasonable - where applicant seeks the Court to determine the terms of the easement, including compensation, on just and fair terms. Property Law Act 1974 (Qld), s. 180 2040 Logan Road Pty Ltd v Body Corporate for Paddington Mews CTS 39149 [2016] QSC 40 Grittner & anor v Hadley [2008] QSC 268 Mitchell v Boutagy [2001] NSWSC 1045 Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2012] NSWCA 445 Naylor & anor v Pierce & anor [2010] QSC 399 Pacific Coast Investment Pty Ltd v Cowlishaw [2005] QSC 259 Peulen & anor v Agius & anor [2015] QSC 137 Rainbowforce Pty Ltd v Skyton Holdings Pty Ltd [2010] NSWLEC 2 Re Kindervater [1996] ANZ Conv R 331 Tregoyd Gardens Pty Ltd v Jervis (1997) 8 BPR 15,845 Ward v Hull [2019] QSC 32 Wengarin Pty Ltd v Bryon Shire Council [1999] NSWSC 485
COUNSEL:	Nil
SOLICITORS: ADVOCATES (with leave):	Nil J Merlo for the applicant D Jeffs for the respondent