Schoonwinkel v Queensland Rail Limited

The parties in this case are Schoonwinkel, the applicant, and Queensland Rail Limited, the respondent. Schoonwinkel applied for an order under section 180 of the Property Law Act 1974 to establish an easement for a right of way over a rail line situated on the southern boundary of the property he owns. The rail line is on Crown land, and the respondent holds a sub-lease over the property. The respondent argued that orders for a statutory right of user were unavailable as section 180 does not apply to Crown land. They referred to authorities where entities were not bound by section 180(8) because they were trustees of the Crown, and they argued that this position similarly applies to lessees of the Crown.

The legal issues before the court were whether section 180(8) of the Property Law Act 1974 applied to Crown land held by a lessee, and whether the statutory right of user should be granted despite the applicant not having paid the required fee for an occupational level crossing application. The court considered the application of section 180 to Crown land held by a lessee, as well as the applicant's failure to pay the fee for the occupational level crossing application. The respondent argued that the applicant's failure to pay the fee constituted an unreasonable refusal, while the applicant contended that the respondent had not refused the application.

The court found that section 180(8) of the Property Law Act 1974 did not apply to Crown land held by a lessee, and therefore the statutory right of user was not available in this case. The court also held that the applicant's failure to pay the fee for the occupational level crossing application did not amount to an unreasonable refusal, as the respondent had not refused the application. Consequently, the application for an interim order was dismissed. The court also amended the name of the respondent in the Originating Application and placed the matter on the Self-Represented Litigants List. The court will hear the parties on further orders and costs.