O'Donnell v Furci & 2 ors - [2006] NSWSC 753

CITATION: O'Donnell v Furci & 2 ors [2006] NSWSC 753

HEARING DATE(S): 23/06/06

JUDGMENT DATE :
23 June 2006

JURISDICTION: Equity Division

JUDGMENT OF: White J

EX TEMPORE JUDGMENT DATE: 06/23/2006

DECISION: 1. Order that, until further order, the first and second defendants not permit, suffer or cause any third party, including any contractor engaged by them or either of them, to block or substantially impede access by any person to or from Lot 15 in DP 1041447, known as 207 Fowler Road, Illawong, along the said right of carriageway; 2. The costs of the notice of motion of 19 June 2006 will be the plaintiff’s costs in the proceedings; 3. These orders may be entered forthwith.

CATCHWORDS: REAL PROPERTY - Easements - Rights of carriageway - Application for interlocutory injunction to restrain blockage of right of carriageway - Access between public road and properties of plaintiff and first and second defendants afforded by narrow carriageway - First and second defendants engaged in construction works on their property - Plaintiff's use of carriageway impeded by vehicles supplying materials for construction works - Whether serious question to be tried that first and second defendants have substantially interfered with plaintiff's right to use carriageway - Whether balance of convenience favours grant of interlocutory injunctive relief - Injunctive relief granted.

LEGISLATION CITED: Conveyancing Act 1919 (NSW)

CASES CITED: London and Suburban Land and Building Co Pty Ltd v Carey (1991) 62 P&C R 480
Grieskis and Lahood [1971] NZLR 502
Kirkpatrick v Kotis (2004) 62 NSWLR 567

PARTIES: Leanne Maree O'Donnell
v
Patrick Joseph John Furci
Mary Furci
Havenview Homes Pty Ltd

FILE NUMBER(S): SC 3312/06

COUNSEL: Plaintiff: M J Cohen
Defendant: D Bernie

SOLICITORS: Plaintiff: Home Wilkinson Lowry
Defendants: Gould Shaw & Hume Solicitors

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WHITE J

Friday 23 June

3312/06 Leanne O’Donnell v Patrick Furci & Ors

JUDGMENT

1 HIS HONOUR: This is an application for an interlocutory injunction to restrain the defendants from interfering with the plaintiff's right to use a right of carriageway.

2 The plaintiff owns land known as 207 Fowler Road, Illawong, NSW. The first and second defendants are the owners of a neighbouring property, 203 Fowler Road. Both properties have frontages to the Georges River and neither property abuts Fowler Road. The right of carriageway gives access to both properties from Fowler Road. It is the only access which the plaintiff has to the road.

3 In about February 2006, the first and second defendants commenced building work on their property. The first defendant, Mr Furci, is undertaking the work as owner/builder of the construction of a house on the property. Access to the first and second defendants’ site is also along the right of carriageway. The right of carriageway lies partly over the first and second defendants’ property and partly over two other properties. Both the plaintiff and the first and second defendants have the right to use it.

4 There is some modification to…

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.

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Details

Case: [2006] NSWSC 753
Decision Date: 23/06/2006

CaseChat Overview and Summary

The case of O'Donnell v Furci & 2 ors involved a dispute over the use of a right of carriageway. The plaintiff, O'Donnell, sought an interlocutory injunction to prevent the first and second defendants, Furci and others, from obstructing their access to their property via a narrow carriageway. The defendants had engaged in construction works on their property, which resulted in the plaintiff's use of the carriageway being impeded by vehicles supplying materials for the works. The plaintiff argued that the defendants had substantially interfered with their right to use the carriageway, and that the balance of convenience favoured the grant of an interlocutory injunction.

The legal issues before the court were whether there was a serious question to be tried that the defendants had substantially interfered with the plaintiff's right to use the carriageway, and whether the balance of convenience favoured the grant of an interlocutory injunction. The court considered the nature of the right of carriageway and the extent of the interference caused by the defendants' construction works. The court also considered the inconvenience to the plaintiff if the injunction was not granted, and the potential inconvenience to the defendants if the injunction was granted.

The court held that there was a serious question to be tried that the defendants had substantially interfered with the plaintiff's right to use the carriageway, and that the balance of convenience favoured the grant of an interlocutory injunction. The court found that the plaintiff had established a prima facie case for injunctive relief, and that the interference caused by the defendants' construction works was substantial and unjustified. The court also found that the inconvenience to the plaintiff if the injunction was not granted outweighed any potential inconvenience to the defendants. The court therefore granted the plaintiff's application for an interlocutory injunction to restrain the defendants from obstructing their access to their property via the narrow carriageway.

The final orders of the court included an interlocutory injunction restraining the defendants from obstructing the plaintiff's access to their property via the narrow carriageway. The court also ordered the defendants to take all necessary steps to ensure that the plaintiff's use of the carriageway was not further impeded by their construction works. The defendants were further ordered to pay the plaintiff's costs of the application.

Orders