Nirimba Developments Pty Limited v Sertari Pty Limited

Nirimba Developments Pty Limited brought an action against Sertari Pty Limited in the Supreme Court of New South Wales, seeking a declaration that it was entitled to lodge an application in the Land and Environment Court for the use of a right of carriageway over land owned by Sertari for the purposes of a large residential development. The dominant tenement was subdivided into two lots, with the proposed development occurring on one lot. Sertari refused to consent to the lodgement of the application, leading to this action. The central legal issue was whether the plaintiff was entitled to use the right of carriageway for the proposed development and, if so, whether the court should order Sertari to consent to the lodgement of the application. The court had to consider the construction of the terms of the grant of the easement, the admissibility of evidence on construction, and whether the question of excessive use was a special consideration or one going to construction.

The court found that the terms of the grant of the easement allowed for the use of the right of carriageway for "any purpose" and that this included the proposed development. The court rejected the argument that the question of excessive use was a special consideration and held that it was a matter going to the construction of the easement. The court also held that evidence was admissible on the construction of the terms of the grant of the easement. The court found that the proposed development did not constitute an excessive use of the right of carriageway and ordered Sertari to consent to the lodgement of the application in the Land and Environment Court.