Norman v Smith - [2014] QDC 4

DISTRICT COURT OF QUEENSLAND

CITATION:

Norman v Smith & Anor [2014] QDC 4

PARTIES:

Kevin John Norman
(Applicant)

and

Neil William Smith and Helen Lorna Smith
(Respondents)

FILE NO/S:

No 68 of 2013

DIVISION:

Civil

PROCEEDING:

Originating Application

ORIGINATING COURT:

District Court at Townsville

DELIVERED ON:

24 January 2014

DELIVERED AT:

Townsville

HEARING DATE:

21 October 2013

JUDGE:

Durward SC DCJ

ORDERS:

Application granted. 1.

The respondents are personally and jointly to give to the applicant a written undertaking, expressed in clear and unambiguous terms, that preserves the applicant’s rights and interest in Easement W. 2.

The respondents to pay to the applicant his costs of and incidental to the proceeding, including reserve costs, as agreed or as assessed, on the standard basis.3.

The parties have liberty to apply on five days notice.4.

CATCHWORDS:
LEGISLATION:
CASES:

EASEMENTS – Whether respondents as grantors impeded or obstructed applicant grantee’s rights of access on and use of easement – where application made for declaration – where no issue about existence and terms of easement – no real contradictor – where no utility in making declaration.

INJUNCTIONS – UNDERTAKINGS - finding of nuisance to land by reason of respondents’ conduct with respect to easement – whether injunction should be made – whether preferable course is undertakings by respondents – observations on form of undertaking.

COSTS – where reserved costs for adjournments of application – where applicant successful – costs of proceedings follow event.

Section 68(1)(b)(xii) of the District Court of Queensland Act 1967.

Fanigun Pty Ltd v Woolworths Ltd & Anor; Woolworths Ltd v Fanigun Pty Ltd & Anor [2006] QSC 28; Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421; Simonidis & Ors v Bremer & Ors [2012] QSC 69; Lade & Co Pty Ltd v Black [2005] QSC 325.

COUNSEL:

AW Collins for the Applicant
Ms L Hillhouse (Solicitor) for the Respondents

SOLICITORS: Ruddy Tomlins & Baxter, Solicitors (Bowen) for the Applicant
Wilson/Ryan/Grose Lawyers for the Respondents

[1] The parties are landholders and neighbours, the applicant being the owner of 353 Bootooloo Road and the respondents being the owners of 351 Bootooloo Road, in Bowen. The dispute the subject of the application is about the use of an easement.

The land

[2] The respondents’ land description is Lot 8 on RP 858295, County of Herbert, Parishes of Dargin and Pring, Title Reference 21560011. The land is burdened by Easement W, being a right of way easement in favour of the applicant’s land, granted on 21 December 1992.

[3] G.L.N. & Sons Pty Ltd is the registered proprietor as trustee of Lot 20 on RP 847502, County of Herbert, Parish of Dargin, Title Reference 21527103. The land is burdened by Easement F, being a right of way easement in favour of both the applicant’s land (Lot 19 on RP 804252, County of Herbert, Parish of Dargin) and Lot 8 (the respondent’s land).

The application

[4] The applicant, Kevin John Norman, applied for several orders: a…

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 Norman v Smith

Details

AGLC: Norman v Smith [2014] QDC 4
Case: [2014] QDC 4
Decision Date: 24 January 2014

CaseChat Overview and Summary

In Norman v Smith, the applicant sought a declaration and an injunction from the court, as well as an order for costs, in relation to an easement over a neighbour’s land. The applicant, Norman, claimed that the respondents, Smith, had impeded or obstructed his rights under an easement. Norman sought a declaration confirming his rights under the easement and an injunction preventing further interference. The respondents did not dispute the existence or terms of the easement but argued that there was no real contradiction in Norman's claim for a declaration and that the court should instead consider whether undertakings from the respondents would be a more appropriate remedy.

The court considered whether an injunction was necessary to prevent the respondents from interfering with Norman's easement rights or if it would be more appropriate for the respondents to provide undertakings. The court observed that the respondents' conduct amounted to a nuisance and recognised the need for a remedy to protect Norman's rights. However, the court held that the preferable course of action was for the respondents to provide undertakings to preserve Norman's rights and interests in the easement. The court noted that the undertakings should be expressed in clear and unambiguous terms.

The court ordered that the respondents were to provide Norman with written undertakings in clear and unambiguous terms that preserved Norman's rights and interests in the easement. The respondents were also ordered to pay Norman's costs of and incidental to the proceeding, including reserve costs, as agreed or as assessed, on the standard basis. The court reserved the matter for further application by either party on five days notice. This decision highlights the court's preference for undertakings over injunctions in certain circumstances, particularly where there is no real contradiction in the applicant's claim for a declaration.

Orders

Orders of the court

Application granted. 1.

The respondents are personally and jointly to give to the applicant a written undertaking, expressed in clear and unambiguous terms, that preserves the applicant’s rights and interest in Easement W. 2.

The respondents to pay to the applicant his costs of and incidental to the proceeding, including reserve costs, as agreed or as assessed, on the standard basis.3.

The parties have liberty to apply on five days notice.4.

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

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Ratio Decidendi

Legal Principle Established

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CITATION:	Norman v Smith & Anor [2014] QDC 4
PARTIES:	Kevin John Norman (Applicant) and Neil William Smith and Helen Lorna Smith (Respondents)
FILE NO/S:	No 68 of 2013
DIVISION:	Civil
PROCEEDING:	Originating Application
ORIGINATING COURT:	District Court at Townsville
DELIVERED ON:	24 January 2014
DELIVERED AT:	Townsville
HEARING DATE:	21 October 2013
JUDGE:	Durward SC DCJ
ORDERS:	Application granted. 1. The respondents are personally and jointly to give to the applicant a written undertaking, expressed in clear and unambiguous terms, that preserves the applicant’s rights and interest in Easement W. 2. The respondents to pay to the applicant his costs of and incidental to the proceeding, including reserve costs, as agreed or as assessed, on the standard basis.3. The parties have liberty to apply on five days notice.4.
CATCHWORDS: LEGISLATION: CASES:	EASEMENTS – Whether respondents as grantors impeded or obstructed applicant grantee’s rights of access on and use of easement – where application made for declaration – where no issue about existence and terms of easement – no real contradictor – where no utility in making declaration. INJUNCTIONS – UNDERTAKINGS - finding of nuisance to land by reason of respondents’ conduct with respect to easement – whether injunction should be made – whether preferable course is undertakings by respondents – observations on form of undertaking. COSTS – where reserved costs for adjournments of application – where applicant successful – costs of proceedings follow event. Section 68(1)(b)(xii) of the District Court of Queensland Act 1967. Fanigun Pty Ltd v Woolworths Ltd & Anor; Woolworths Ltd v Fanigun Pty Ltd & Anor [2006] QSC 28; Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421; Simonidis & Ors v Bremer & Ors [2012] QSC 69; Lade & Co Pty Ltd v Black [2005] QSC 325.
COUNSEL:	AW Collins for the Applicant Ms L Hillhouse (Solicitor) for the Respondents
SOLICITORS:	Ruddy Tomlins & Baxter, Solicitors (Bowen) for the Applicant Wilson/Ryan/Grose Lawyers for the Respondents