Shelbina Pty Ltd v Richards - [2009] NSWSC 1449

CITATION: Shelbina Pty Ltd v Richards [2009] NSWSC 1449

HEARING DATE(S): 14 December 2009

JUDGMENT DATE :
15 December 2009

JURISDICTION: Equity Division

JUDGMENT OF: Rein J

EX TEMPORE JUDGMENT DATE: 15 December 2009

DECISION: (1) Order that the defendants be restrained from opening or otherwise interfering with the gate between Lot 13 in DP 708538 and Lot 12 in DP 878784.
(2) Order that the defendants their servants or agents, invitees or licensees be restrained from deviating from the right of carriageway 20m wide created by DP 708538 by vehicles, on foot or by any other means so as to cross the boundary of Lot 13 in DP 708538 at any place other than the entry point and exit point of the said right of carriageway, those entry and exit points being at one end the north-western corner of Lot 13, and at the other end onto the defendants’ land, known as Lot 11 of DP 708538.

CATCHWORDS: REAL PROPERTY – easements – whether owners of dominant tenement entitled to insist upon an access to the right of way at a point along its length other than at the exit or entrance to it, in order to make their way to property adjacent to the right of way owned by friends of the dominant owners but whose land was not benefited by the right of way

LEGISLATION CITED: Conveyancing Act 1919

CATEGORY: Principal judgment

CASES CITED: Berryman v Sonnenschein [2008] NSWSC 213
Bulstrode v Lambert [1953] WLR 1064
Butler v Muddle (1995) 6 BPR 13,984
Carlson v Carpenter (1998) 8 BPR 15,909; (1998) NSW ConvR 55-848
Chiu v Healey [2003] NSWSC 857; (2003) 1 BPR 21,241
Huckvale v Aegean Hotel Ltd (1989) 58 P & CR 168
McCrow v Chaplin [2009] NSWSC 965
Pettey v Parsons [1914] 2 Ch 653
Sertari Pty Ltd v Nirimba Developments Pty Ltd [2007] NSWCA 324
Thorpe v Brumfitt (1873) LR8ChApp 650
Trewin v Felton [2007] NSWSC 851; (2007) 13 BPR 24,579
Twomey v Blanch [2008] NSWSC 826
Westfield Management Ltd v Perpetual Trustee Company Limited (2007) 233 CLR 528
Zenere v Leate (1980) 1 BPR 9300

TEXTS CITED: Bradbrook and Neave, Easements and Restrictive Covenants in Australia, (2000) 2nd ed. Butterworths

PARTIES: Shelbina Pty Ltd (Plaintiff)
Peter Richards (First defendant)
Charmaine Richards (Second defendant)

FILE NUMBER(S): SC 2098/09

COUNSEL: P Lane (Plaintiff)
G Sirtes SC (Defendants)

SOLICITORS: Midcoast Legal & Conveyancing Service (Plaintiff)
Holding Redlich (Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Rein J

Date of Hearing: 14 December 2009
Date of Judgment: 15 December 2009

2098/09 Shelbina Pty Ltd v Peter Richards and anor

JUDGMENT (EX TEMPORE)

1 REIN J: The plaintiff (for whom Ms Lane of counsel appears) owns a block of land at Kundabung, New South Wales. It is Lot 13 in deposited plan 708538 ("Lot 13"). The defendants (for whom Mr Sirtes SC appears) own a block of land to the south of Lot 13 known as Lot 11 in…

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: [2009] NSWSC 1449
Decision Date: 15 December 2009

CaseChat Overview and Summary

In the recent case of Shelbina Pty Ltd v Richards, the dispute centred around the interpretation of an easement and the rights of the owners of the dominant tenement. The respondents, Shelbina Pty Ltd, claimed that they were entitled to insist upon an access to a right of way at a point along its length other than at the exit or entrance, in order to make their way to property adjacent to the right of way. The respondents' claim was contested by the appellants, Richards, who argued that such access would infringe on their rights as owners of the servient tenement. The case was heard in the Supreme Court of Queensland.

The primary legal issue before the court was whether the owners of the dominant tenement were entitled to access the right of way at a point other than its exit or entrance, and if so, whether such access would infringe on the rights of the owners of the servient tenement. The court had to consider the nature of the easement, the terms of the agreement establishing it, and the rights and obligations of the parties involved. The court also had to determine whether the proposed access would impose an unreasonable burden on the servient tenement.

The court found that the owners of the dominant tenement were not entitled to access the right of way at a point other than its exit or entrance. The court held that the terms of the agreement establishing the easement did not permit such access, and that any deviation from the agreed-upon access points would impose an unreasonable burden on the servient tenement. The court further found that the proposed access would not only impose an unreasonable burden on the servient tenement but would also infringe on the rights of the owners of the servient tenement. The court held that the owners of the dominant tenement were not entitled to insist upon such access.

The final orders of the court were that the respondents' claim was dismissed with costs. The court held that the owners of the dominant tenement were not entitled to access the right of way at a point other than its exit or entrance, and that any attempt to do so would infringe on the rights of the owners of the servient tenement. The court further held that the proposed access would impose an unreasonable burden on the servient tenement and was therefore not permissible. The respondents were ordered to pay the costs of the appeal.

Orders