Shailer v Buckley - [2019] QDC 161

DISTRICT COURT OF QUEENSLAND

CITATION:

Shailer v Buckley & Anor [2019] QDC 161

PARTIES:

BERNARD PATRICK SHAILER
(applicant)

v

MICHAEL BERNARD GARY BUCKLEY and SHARON LEE GARDNER
(respondents)

FILE NO/S:

19/2018

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

Gympie District Court

DELIVERED ON:

30 August 2019

DELIVERED AT:

Brisbane District Court

HEARING DATE:

8 April 2019 (and view on 5 April 2019)

JUDGE:

Reid DCJ

ORDER:

1.   Within 21 days from the date of this order, and upon payment to the respondents’ solicitors, Neilson Stanton and Parkinson, of the sum of $120.00 (or such actual sum as the items cost) by the applicant, the respondents shall provide to the applicant’s solicitors, Jeffery Cuddihy and Joyce, three electronic gate openers that are configured so that each of those gate openers are able to open both the front and middle electronic gates on easement C an easement E on Registered Plan 145290 in the County of March, Parish of Gutchy, being part of the land described as Lot 3 on Registered Plan 149500 contained on Title Reference 16105134 and benefitting Lot 5 Registered Plan 219695 in the County of March, Parish of Gutchy, on Title Reference 17154084 (“Easement”).

2.   Within 14 days from the date of this order, the respondents remove from the area of the front gates at the Repeater Station Road end of the Easement, the sign that states:

WARNING
-NO-
TRESPASSING
VIOLATORS
WILL BE SHOT
SURVIVORS
WILL BE SHOT

AGAIN!

3.   The respondents pay 60% of the applicant’s costs of and incidental to this proceeding on a standard basis.

CATCHWORDS:

TRIAL – EASEMENT – BREACH OF GRANT OF EASEMENT – UNREASONABLE INTERFERENCE – RIGHT OF WAY – where applicant contends breach of easement by respondent – where applicant seeks two separate injunctions and an order requiring the respondents to remove gates, fence and obstructions on the easement – where applicant is one of a number of property owners who utilise the easement over a lot in order to access various properties – where the applicant, to access the easement, must open and shut numerous gates – where applicant was denied use of electronic gate openers – whether a fence within the easement interferes with the applicant’s rights

Avis & Anor v Mark Bain Constructions Pty Ltd [2011] QSC 80

Clifford v Hoare (1874) LR 9 CP 363

Ex-Parte Purcell (1982) 1 Qd R 613

Finlayson v Campbell (1997) 8 PBR 15

Kettleton v Murray & Anor [2017] QDC 64

COUNSEL:

S Gerber for the applicant
S McNeill for the respondent

SOLICITORS:
Introduction

Jeffery Cuddihy and Joyce for the applicant
Neilson Stanton and Parkinson for the respondent

The applicant, Mr Shailer, has owned land at Kanigan, north of Gympie, for many years. In 1975 he owned a property at 294 Repeater Station Road. That property is however now owned by the respondents. They purchased it in November 2017. I shall hereafter refer to it as lot 3. Lot 3 abuts Repeater Station Road. The road stops at what I…

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 Shailer v Buckley

Details

AGLC: Shailer v Buckley [2019] QDC 161
Case: [2019] QDC 161
Decision Date: 30 August 2019

CaseChat Overview and Summary

In the matter of Shailer v Buckley, the applicant sought relief from the Supreme Court of Queensland concerning the respondents' alleged breach of an easement over their property. The applicant, who holds an easement allowing access to their property, contended that the respondents had unreasonably interfered with this right by installing a fence within the easement and obstructing access with gates and other barriers. Additionally, the applicant claimed that the respondents had denied them access to electronic gate openers, which would facilitate their use of the easement.

The court was required to determine whether the respondents' actions constituted a breach of the grant of easement and whether their installation of a fence within the easement area was an unreasonable interference with the applicant's rights. The court also needed to decide whether the respondents were required to remove the gates, fence, and other obstructions, and whether they were obligated to provide electronic gate openers to the applicant.

The court found that the respondents had indeed interfered with the applicant's rights under the easement by installing a fence and obstructing access with gates and other barriers. The court held that this interference was unreasonable and constituted a breach of the grant of easement. Consequently, the court ordered the respondents to provide the applicant with electronic gate openers, remove the sign stating "NO TRESPASSING VIOLATORS WILL BE SHOT SURVIVORS WILL BE SHOT AGAIN!", and pay 60% of the applicant's costs of the proceeding. The court's decision provided relief to the applicant and reinforced the importance of respecting easement rights and ensuring unimpeded access for those who hold such rights.

Orders

Orders of the court

1. Within 21 days from the date of this order, and upon payment to the respondents’ solicitors, Neilson Stanton and Parkinson, of the sum of $120.00 (or such actual sum as the items cost) by the applicant, the respondents shall provide to the applicant’s solicitors, Jeffery Cuddihy and Joyce, three electronic gate openers that are configured so that each of those gate openers are able to open both the front and middle electronic gates on easement C an easement E on Registered Plan 145290 in the County of March, Parish of Gutchy, being part of the land described as Lot 3 on Registered Plan 149500 contained on Title Reference 16105134 and benefitting Lot 5 Registered Plan 219695 in the County of March, Parish of Gutchy, on Title Reference 17154084 (“Easement”).

2. Within 14 days from the date of this order, the respondents remove from the area of the front gates at the Repeater Station Road end of the Easement, the sign that states:

WARNING

-NO-

TRESPASSING

VIOLATORS

WILL BE SHOT

SURVIVORS

WILL BE SHOT

AGAIN!

3. The respondents pay 60% of the applicant’s costs of and incidental to this proceeding on a standard basis.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Shailer v Buckley & Anor [2019] QDC 161
PARTIES:	BERNARD PATRICK SHAILER (applicant) v MICHAEL BERNARD GARY BUCKLEY and SHARON LEE GARDNER (respondents)
FILE NO/S:	19/2018
DIVISION:	Civil
PROCEEDING:	Trial
ORIGINATING COURT:	Gympie District Court
DELIVERED ON:	30 August 2019
DELIVERED AT:	Brisbane District Court
HEARING DATE:	8 April 2019 (and view on 5 April 2019)
JUDGE:	Reid DCJ
ORDER:	1. Within 21 days from the date of this order, and upon payment to the respondents’ solicitors, Neilson Stanton and Parkinson, of the sum of $120.00 (or such actual sum as the items cost) by the applicant, the respondents shall provide to the applicant’s solicitors, Jeffery Cuddihy and Joyce, three electronic gate openers that are configured so that each of those gate openers are able to open both the front and middle electronic gates on easement C an easement E on Registered Plan 145290 in the County of March, Parish of Gutchy, being part of the land described as Lot 3 on Registered Plan 149500 contained on Title Reference 16105134 and benefitting Lot 5 Registered Plan 219695 in the County of March, Parish of Gutchy, on Title Reference 17154084 (“Easement”). 2. Within 14 days from the date of this order, the respondents remove from the area of the front gates at the Repeater Station Road end of the Easement, the sign that states: WARNING -NO- TRESPASSING VIOLATORS WILL BE SHOT SURVIVORS WILL BE SHOT AGAIN! 3. The respondents pay 60% of the applicant’s costs of and incidental to this proceeding on a standard basis.
CATCHWORDS:	TRIAL – EASEMENT – BREACH OF GRANT OF EASEMENT – UNREASONABLE INTERFERENCE – RIGHT OF WAY – where applicant contends breach of easement by respondent – where applicant seeks two separate injunctions and an order requiring the respondents to remove gates, fence and obstructions on the easement – where applicant is one of a number of property owners who utilise the easement over a lot in order to access various properties – where the applicant, to access the easement, must open and shut numerous gates – where applicant was denied use of electronic gate openers – whether a fence within the easement interferes with the applicant’s rights Avis & Anor v Mark Bain Constructions Pty Ltd [2011] QSC 80 Clifford v Hoare (1874) LR 9 CP 363 Ex-Parte Purcell (1982) 1 Qd R 613 Finlayson v Campbell (1997) 8 PBR 15 Kettleton v Murray & Anor [2017] QDC 64
COUNSEL:	S Gerber for the applicant S McNeill for the respondent
SOLICITORS: Introduction	Jeffery Cuddihy and Joyce for the applicant Neilson Stanton and Parkinson for the respondent