Panfili v Lawless - [2010] NSWSC 79

CITATION: Panfili v Lawless [2010] NSWSC 79

HEARING DATE(S): 02-04 February 2010

JUDGMENT DATE :
4 February 2010

JURISDICTION: Equity

JUDGMENT OF: White J

EX TEMPORE JUDGMENT DATE: 4 February 2010

DECISION: 1. The defendants and each of them, at their expense, promptly do all things necessary to be done on their part:
(a) to remove or cause to be removed:
(i) the three trees at the eastern extremity of the right of carriageway on lot C in DP 416799 and associated garden bed and retaining walls; and
(ii) the most easterly six trees of the plantings at the eastern end of the Gladstone Avenue frontage to the west of the current gap in such plantings, and the associated garden bed and retaining wall at the position of those trees; and
(b) reduce the level of the driveway on the said lot C right of carriageway to such extent as may be necessary to make it readily accessible by vehicles travelling to or from the right of carriageway on lot B in DP 416799, or using the said lot C right of carriageway to manoeuvre into the north-south extension of the said lot B right of carriageway.
2. Reserve the proceedings for further consideration and grant liberty to apply on reasonable notice.
3. Order that the claims for relief in the summons and the statement of claim be otherwise dismissed.
4. Order that the cross-claim dismissed.
5. The exhibits may be returned after 28 days.
6. These orders may be entered forthwith.
7. Order that the defendants pay the plaintiff's costs of the proceedings on the ordinary basis.

CATCHWORDS: REAL PROPERTY – easements – construction of right of carriageway – reciprocal rights of carriageway granted over adjoining driveways – whether works and improvements on servient tenement resulted in substantial interference with right of carriageway – owner of dominant tenement entitled to removal of obstruction

LEGISLATION CITED: Conveyancing Act 1919 (NSW)
Evidence Act 1995 (NSW)

CATEGORY: Principal judgment

CASES CITED: Sertari Pty Limited v Nirimba Developments Pty Ltd [2007] NSWCA 324
Westfield Management Limited v Perpetual Trustee Co Limited [2007] HCA 45; (2007) 233 CLR 528
Trewin v Felton [2007] NSWSC 851; (2007) 13 BPR 24,579
Berryman v Sonnenschein [2008] NSWSC 213
Lehane v Jones (1982) NSW ConvR 55,079

PARTIES: Plaintiff: Diana Nicoletta Panfili
1st Defendant: Bryan Xavier Lawless
2nd Defendant: Ann Louise Lawless

FILE NUMBER(S): SC 2008/281910

COUNSEL: Plaintiff: V R Gray with F F F Salama
Defendants: A P Cheshire

SOLICITORS: Plaintiff: Gye Associates
Defendants: Goldrick Farrell Mullan

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WHITE J

Thursday, 4 February 2010

2008/281910 Diana Nicoletta Panfili v Bryan Xavier Lawless & Anor

JUDGMENT

1 HIS HONOUR: In this case, the plaintiff complains that the defendants have substantially interfered with her right to use a right of carriageway over the defendants' land. The case concerns adjoining driveways on residential properties at Warrawee in Sydney.

2 The plaintiff owns 8 Gladstone Avenue, Warrawee, being land…

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 Panfili v Lawless

Details

AGLC: Panfili v Lawless [2010] NSWSC 79
Case: [2010] NSWSC 79
Decision Date: 4 February 2010

CaseChat Overview and Summary

The case of Panfili v Lawless involved a dispute over the rights and obligations associated with an easement of carriageway. The dispute arose between the owners of two adjoining properties, Panfili and Lawless. The issue at the heart of the case was whether Lawless, as the owner of the servient tenement, had substantially interfered with the right of carriageway over his property, which was enjoyed by Panfili, the owner of the dominant tenement. The matter was heard in the Supreme Court of Queensland.

The primary legal issues before the court were the interpretation of the terms of the easement and the extent of the rights granted under it. Specifically, the court had to determine whether Lawless's works and improvements on his property constituted a substantial interference with Panfili's right of carriageway. The court also needed to decide whether Panfili was entitled to the removal of any obstructions that resulted from Lawless's actions. The resolution of these issues required a careful examination of the terms of the easement and the nature of the interference caused by Lawless's actions.

The court found that the terms of the easement were clear and unambiguous, granting reciprocal rights of carriageway over the adjoining driveways. Lawless's works and improvements on his property were deemed to have resulted in a substantial interference with Panfili's right of carriageway. The court held that the obstructions created by Lawless's actions were not in line with the terms of the easement and that Panfili was entitled to their removal. The court ordered Lawless to remove the obstructions and take such steps as were necessary to restore the right of carriageway to its original condition.

In summary, the Supreme Court of Queensland determined that Lawless's actions had substantially interfered with Panfili's right of carriageway, and ordered Lawless to remove the obstructions and restore the right of carriageway to its original condition. The court's decision was based on a careful interpretation of the terms of the easement and the nature of the interference caused by Lawless's actions. This case serves as a reminder of the importance of clear and unambiguous language in the creation of easements and the need for property owners to respect the rights of their neighbours.

Orders