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

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 10421 of 2006

MANTEC THOROUGHBREDS PTY LTD (ACN 005 191 711)	Plaintiff
v
NEDILJKO BATUR AND GORDANA ANA BATUR	Defendants

---

JUDGE:	HABERSBERGER J
WHERE HELD:	MELBOURNE
DATES OF HEARING:	10-13, 16 FEBRUARY 2009
DATE OF JUDGMENT:	20 AUGUST 2009
CASE MAY BE CITED AS:	MANTEC THOROUGHBREDS PTY LTD v BATUR
MEDIUM NEUTRAL CITATION:	[2009] VSC 351

---

Real Property – Easements – Easement of way – Scope of easement – Whether access along easement substantially obstructed by a dam, by fences four metres inside easement and by a locked gate at the roadway – Right of dominant tenement owner to improve access so long as works do not interfere with servient tenement owner’s right of enjoyment – Easement of necessity – Right to deviate.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D F Hyde	Oakley Thompson & Co (in February 2009)
Hopkins Lawyers (in August 2009)
For the Defendants	Mr J J Isles	Dominic Esposito Solicitors

HIS HONOUR:

Introduction

This proceeding resulted from a dispute concerning the parties’ rights and obligations with respect to an easement that benefits the property of the defendants, and burdens the property of the plaintiff.

In 1998, a large rural estate named “Annesleigh Park” (“the original property”) situated on Bungower Road, Moorooduc was subdivided into six separate lots by Plan of Subdivision No. PS 415764E. The original property was situated to the north of Bungower Road, which runs approximately east-west, and to the east of Derril Road, which runs approximately north-south. Under the subdivision, lot 2 is in the north-east corner of the intersection of Bungower Road and Derril Road. To the east of lot 2 are lots 3, 5 and 6 respectively, which also have frontages on to Bungower Road. Lot 1, with a frontage to Derril Road, is to the north of lots 2 and 3 and the main part of lot 4 is to the north of lot 5. Lot 4 is in the shape of a “battleaxe”, the handle of which runs out to Derril Road, to the north of lot 1. A ten metre drainage reserve in the form of a small gully runs approximately north-south through the subdivision between lots 1 and 3 to the west and lots 4 and 5 to the east. The drainage reserve is Crown land.

The first and second defendants, Mr Nediljko (“Eddie”) Batur and his wife, Mrs Gordana Batur, are the registered proprietors of lot 4, the dominant tenement. The plaintiff, Mantec Thoroughbreds Pty Ltd (“Mantec”), is the registered proprietor of lot 5, the servient tenement. Mrs Diana Anceschi is a director and shareholder of Mantec.

The Easement

Plan of Subdivision No. PS 415764E created an easement of way, referred to as “E-1” and “E-2”, over lot 5 in favour of lot 4. The Plan also shows a powerline easement, referred to as “E-2” and “E-3”, over lots 5, 4 and 1 in favour of United…

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.

Keep reading for free

Create a free CaseChat account to read Mantec Thoroughbreds Pty Ltd v Batur and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2009] VSC 351
Decision Date: 20 August 2009

CaseChat Overview and Summary

Mantec Thoroughbreds Pty Ltd initiated proceedings against Batur over the use of an easement of way across Batur's land. The easement was originally intended to provide access to Mantec's land, which was landlocked. The dispute centred on the adequacy and use of the easement, with Mantec contending that it had been substantially obstructed by a dam, fences positioned four metres inside the easement, and a locked gate at the roadway. Batur, on the other hand, argued that the easement was sufficient and that Mantec had no right to alter it without his consent.

The court was required to determine whether the easement had been obstructed to a degree that it was rendered unusable, and if so, whether Mantec was entitled to take steps to improve the access. Additionally, the court needed to consider whether there was an easement of necessity, which would allow Mantec to deviate from the original terms of the easement if necessary to ensure access. The court also had to examine whether such deviation would interfere with Batur’s rights to enjoy his property.

The court found that the easement had indeed been substantially obstructed, effectively rendering it unusable. It held that Mantec had the right to improve the access provided by the easement so long as the works did not interfere with Batur's right to enjoy his property. The court rejected Batur’s claim that Mantec could not deviate from the easement without his consent, finding that an easement of necessity was applicable. Consequently, Mantec was permitted to make the necessary alterations to ensure practical access to its land.

The final orders included a declaration that the easement had been obstructed and that Mantec was entitled to improve the access, subject to the condition that such improvements did not unreasonably interfere with Batur's rights. Mantec was also granted permission to deviate from the original terms of the easement to the extent necessary to restore practical access.

Orders