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McWilliam v Hunter

McWilliam v Hunter

Case [2022] NSWSC 342 28 March 2022

Easements & Covenants

Injunction

Specific Performance

Property Law

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: McWilliam v Hunter [2022] NSWSC 342
Hearing dates: 15 March 2022
Date of orders: 28 March 2022
Decision date: 28 March 2022
Jurisdiction: Equity
Before: Darke J
Decision:
Plaintiffs entitled to injunctive relief to prevent defendants from building so as to allow a clearance height of 2.8m above right of carriageway.

Catchwords:
REAL PROPERTY – easements – unreasonable interference with an easement – where the plaintiffs seek declaratory and injunctive relief to restrain the defendants from building above right of carriageway – where proposed construction would impose a height limit of 2.8 metres over the right of carriageway – where height limit would preclude certain types of vehicles from using right of carriageway – held that the proposed interference with the right of carriageway was a real and substantial interference – held that the easement should not be modified under section 89(1) of the Conveyancing Act 1919 (NSW) to effect a height limitation – injunctive relief granted to prevent the defendants’ proposed development

Legislation Cited:
Conveyancing Act 1919 (NSW), ss 88B, 89(1), 181A(1), Sch 8, Pt 1

Cases Cited:
Butler v Muddle (1995) 6 BPR 13,984
Frasers Lorne Pty Ltd v Burke (2008) 14 BPR 26,131; [2008] NSWSC 743
Hare v van Brugge (2013) 84 NSWLR 41; [2013] NSWCA 74
Lowe v Kladis (2018) 19 BPR 38,599; [2018] NSWCA 130
Middleton v Arthur (2002) 11 BPR 20,263; [2002] NSWSC 627
Owners of Strata Plan 48754 v Anderson (1999) 9 BPR 17,119; [1999] NSWSC 580
Pwllbach Colliery Company Ltd v Woodman [1915] AC 634
Re Mason and the Conveyancing Act (1960) 78 WN (NSW) 925
Sertari Pty Ltd v Nirimba Developments Pty Ltd (2008) NSW Conv R 56-200; [2007] NSWCA 324
Sheppard v Smith [2021] NSWSC 1207
Trewin v Felton (2007) 13 BPR 24,579; [2007] NSWSC 851
Westfield Management Ltd v Perpetual Trustee Company Ltd (2007) 233 CLR 528; [2007] HCA 45

Category: Principal judgment
Parties: Phillip McWilliam (First Plaintiff/First Cross-Defendant)
Susan McWilliam (Second Plaintiff/Second Cross-Defendant)
Howard Hunter (First Defendant/First Cross-Claimant)
Wendy Hunter (Second Defendant/Second Cross-Claimant)
Representation:
Counsel:
Mr M Astill (Plaintiffs/Cross-Defendants)
Mr P Folino-Gallo (Defendants/Cross-Claimants)
Solicitors:
HWL Ebsworth Lawyers (Plaintiffs/Cross-Defendants)
ClarkeKann Lawyers (Defendants/Cross-Claimants)

File Number(s): 2020/321671
Publication restriction: None

Judgment

Introduction

The plaintiffs, Phillip McWilliam and Susan McWilliam, are the joint owners of the property known as 7 Ocean Street, Scotts Head. The land is that which is contained within Folio Identifier 412/611276 (“Lot 412”). The defendants, Howard Hunter and Wendy Hunter, are the joint owners of an adjoining property known as 7A Ocean Street, Scotts Head. Their land is that which is contained within Folio Identifier 413/611276 (“Lot 413”).
The proceedings concern a right of carriageway that burdens the defendants’ Lot 413 and benefits the plaintiffs’ Lot 412. The right of carriageway was created on 14 October 1980 upon the registration of Deposited Plan 611276.
As the addresses imply, both lots have frontages onto Ocean Street, Scotts Head. On the opposite (eastern) side…

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 McWilliam v Hunter

Details

AGLC: McWilliam v Hunter [2022] NSWSC 342
Case: [2022] NSWSC 342
Decision Date: 28 March 2022

CaseChat Overview and Summary

The plaintiffs in McWilliam v Hunter sought relief from the Supreme Court of New South Wales to restrain the defendants from constructing above their right of carriageway. The defendants’ proposed construction would impose a height limit of 2.8 metres over the right of carriageway, which would preclude certain types of vehicles from using the easement. The plaintiffs argued that the proposed interference with the right of carriageway was a real and substantial interference and sought declaratory and injunctive relief. The court was required to determine whether the proposed interference with the easement was unreasonable and whether the easement should be modified to effect a height limitation.

The court considered the nature of the right of carriageway and the extent to which the proposed development would interfere with its use. The court held that the proposed interference with the right of carriageway was a real and substantial interference as it would impose a height limit that would preclude certain types of vehicles from using the easement. The court further held that the easement should not be modified under section 89(1) of the Conveyancing Act 1919 (NSW) to effect a height limitation as it would substantially deprive the plaintiffs of the beneficial enjoyment of their property. The court found that the defendants’ proposed development would have a significant impact on the plaintiffs’ use of the right of carriageway and that the interference was unreasonable.

The court granted injunctive relief to prevent the defendants’ proposed development above the right of carriageway. The court found that the proposed development would cause significant harm to the plaintiffs’ use of the right of carriageway and that the interference was not justified. The court held that the defendants were restrained from constructing above the right of carriageway in a manner that would impose a height limit of 2.8 metres. The court also ordered the defendants to pay the plaintiffs’ costs of the proceedings. The court held that the proposed development would cause significant harm to the plaintiffs’ use of the right of carriageway and that the interference was not justified. The court held that the defendants were restrained from constructing above the right of carriageway in a manner that would impose a height limit of 2.8 metres.

Orders