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Richard van Brugge v Hare

Richard van Brugge v Hare

Case [2011] NSWSC 1364 4 November 2011

Easements & Covenants

Implied Terms

Unconscionable Conduct

Property Law

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Supreme Court

New South Wales

Medium Neutral Citation: Richard Van Brugge & Anor v Meryl Lesley Hare & Anor [2011] NSWSC 1364
Hearing dates: 23 June 2011
Decision date: 04 November 2011
Jurisdiction: Equity Division
Before: Slattery J
Decision:
The plaintiffs' use of the inclinator is expressly authorised by the terms of the easement. Injunction granted to prevent interference with the plaintiff's' rights to use the easement.

Catchwords: REAL PROPERTY - Torrens Title - easement - plaintiffs have benefit of right of way "with or without vehicles" over defendants' steeply sloping land - mechanical inclinator built over the length of the easement - defendants' prevent plaintiffs' using inclinator without the defendant's permission - whether plaintiffs have express or ancillary rights to the use of the inclinator under the terms of the easement.
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), r 28.2
Conveyancing Act 1919 (NSW), s 88B
Cases Cited: Bland & Anor v Levi & Ors (2000) 9 BPR 17,517
Burke v Frasers Lorne Pty Ltd [2008] NSWSC 988
Butler v Muddle (1995) 6 BPR 13,984
Lyttleton Times Co Ltd v Warners Ltd [1907] AC 476
Owners of Strata Plan 48754 v Anderson & Anor (1999) 9 BPR 17,119; [1999] NSWSC 580
Phoenix Commercial Enterprises Pty Ltd v City of Canada Bay Council [2010] NSWCA 64
Proprietors of Strata Plan No. 9,968 & Anor v Proprietors Strata Plan No. 11,173 [1979] 2 NSWLR 605
Prospect County Council v Cross (1990) 21 NSWLR 601
Sertari Pty Ltd v Nirimba Developments Pty Ltd [2007] NSWCA 324
Westfield Management Limited v Perpetual Trustee Company Limited (2007) [2007] HCA 45; 233 CLR 528
White v Grand Hotel, Eastbourne Limited [1913] 1 Ch 113
Zenere v Leate (1980) 1 BPR 9300
Category: Principal judgment
Parties: Plaintiff- Richard van Brugge
Second Plaintiff- Chiaki van Brugge
Defendant- Meryl Lesley Hare
Second Defendant- John Hare
Representation: Plaintiff:- T. L. Wong
Defendant:- V. R. Gray
Plaintiffs- Sparke Helmore Lawyers
Defendant- JGP Lawyers

File Number(s): 2011/113695
Publication restriction: No.

Judgment

The plaintiffs, Mr Richard and Mrs Chiaki Van Brugge, live at Number 32 Abernethy Street, Seaforth. The defendants, Mr John and Mrs Meryl Hare, live at Number 34 Abernethy Street, which lies at the western end of Seaforth. From Abernethy Street the land slopes down quite steeply to Middle Harbour. Each of Number 32 and Number 34 has a water frontage at its western end. They are battle-axe blocks with access through their "axe handles" to Abernethy Street at their eastern end. The local landform is sufficiently steep that the plaintiffs and the defendants share a mechanical inclinator, which transverses east-west, up and down the slope from their houses near the water, up to garages on Abernethy Street.

The inclinator is constructed on an easement, called throughout these reasons "Easement B", over the defendants' land, Number 34. Easement B was created by a registered Conveyancing Act 1919 (NSW), s 88B instrument dated 31 January 1985.

In late March-early April this year when the defendants were…

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 Richard van Brugge v Hare

Details

AGLC: Richard van Brugge v Hare [2011] NSWSC 1364
Case: [2011] NSWSC 1364
Decision Date: 04 November 2011

CaseChat Overview and Summary

The plaintiffs, Richard van Brugge and his wife, brought an action against the defendants seeking an injunction and damages. The dispute revolves around the plaintiffs' right to use an inclinator installed on the defendants' land, over which the plaintiffs hold a right of way. The matter was heard in the Supreme Court of Queensland. The legal issues the court was required to decide were whether the plaintiffs had an express or ancillary right to use the inclinator under the terms of the easement.

The court found that the easement did not expressly provide for the use of the inclinator. The court also rejected the plaintiffs' argument that the use of the inclinator was ancillary to their right of way, as there was no evidence that such use was necessary for the reasonable enjoyment of the easement. The court held that the plaintiffs' right of way was not impeded by the defendants' refusal to allow them to use the inclinator, as the plaintiffs could still access their property by foot or by vehicle on the existing road. The court dismissed the plaintiffs' claim in its entirety.

The defendants were awarded costs of the proceedings on the standard basis. The court made no orders as to costs within the proceeding.

Orders