Naylor v Pierce

[2010] QSC 399

SUPREME COURT OF QUEENSLAND

CITATION:

Naylor & Anor v Pierce & Anor [2010] QSC 399

PARTIES:

JULIE-ANN PAULINE NAYLOR
(first applicant)
LORNE WILLIAM BARRETT
(second applicant)
v
MORRIS ROBERT PIERCE
(first respondent)
WALTER RICHARD PIERCE
(second respondent)

FILE NO/S:

BS7180 of 2010

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court Rockhampton

DELIVERED ON:

22 October 2010

DELIVERED AT:

Rockhampton

HEARING DATE:

6, 7, 8 October 2010

JUDGE:

McMeekin J

ORDER:

The application is dismissed.  The applicants are ordered to pay the first respondent’s costs.

CATCHWORDS:

REAL PROPERTY – EASEMENTS – PARTICULAR EASEMENTS AND RIGHTS – RIGHTS OF WAY – CREATION – where the applicants seek the imposition of an easement including a right of way over the land of the respondents pursuant to s 180 of the Property Law Act 1974 – where the second respondent did not participate in the proceedings – where the first respondent requested that the applicants not enter his land after the expiry of a temporary access agreement – where the applicants subsequently trespassed – whether the applicants were aware that legal access to the land was not available at the time of purchase – whether the imposition of a statutory right of user is “reasonably necessary” – whether the respondent could be adequately recompensed in money for any loss or disadvantage which the respondent may suffer from the imposition of the easement – whether the respondent’s refusal to accept the imposition of the statutory right of user was unreasonable

Land Act 1994 (Qld), s 94(2)
Land Title Act 1994 (Qld), 184
Property Law Act 1974 (Qld), s 180

Ex parte Edward Street Properties Pty Ltd [1977] Qd R 86 Grittner & Anor v Hadley [2008] QSC 268
Lang Parade Pty Ltd v Peluso & Ors [2005] QSC 112; [2006] 1 Qd R 42
Lynch v White (1987) Q Conv R 54-257
Re Hodgskin [1999] QSC 225
Tipler v Fraser [1976] Qd R 272
Tran & Anor v Cowan & Ors [2006] QSC 136

COUNSEL:

A. Mellick for the applicants
L. Nevison for the first respondent

SOLICITORS:

Thynne & Macartney for the applicants
Edgar & Wood for the first respondent

1. EEKIN J:  McMThe applicants, Mrs Julie Naylor and her brother Mr Lorne Barrett, are the registered proprietors of land, known to them as “Tabgha”,[1] which abuts land of the respondent, Mr Morris Pierce, referred to in the evidence as “the Pocket”.[2]  The applicants seek the imposition of a statutory right of user, in the form of an easement including a right of way, over the Pocket on the basis that their land is landlocked.  Mr Pierce opposes the order being made. The right that the applicants seek also affects a small parcel of land in which the second respondent, Mr Walter Richard Pierce, has an interest[3] (which I will call “Lot 1”) but he has taken no active part in the proceedings and has indicated that he will abide the order of the Court.

   [1]Lot 1777 on CPLIV0566606928 County of Livingstone Parish of…