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Thomas v Pearson

Thomas v Pearson

Case [2025] NSWSC 1127 2 October 2025

Easements & Covenants

Unjust Enrichment

Adverse Possession

Property Law

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Supreme Court

New South Wales

Medium Neutral Citation: Thomas v Pearson [2025] NSWSC 1127
Hearing dates: 15 September 2025
Date of orders: 2 October 2025
Decision date: 02 October 2025
Jurisdiction: Equity - Real Property List
Before: Pike J
Decision:
Amended statement of claim dismissed with costs.

Catchwords:
LAND LAW – Easements – Construction of easements – where dominant owner granted Easement for Support to garage motor vehicles – where servient owner builds a deck and fence on top of garage – whether easement is limited in height – whether servient owner has substantially interfered with dominant owner’s rights – no question of principle

Legislation Cited:
Conveyancing Act 1919 (NSW), ss 89 and 181A(1)
North Sydney Local Environmental Plan 2013
Real Property Act 1900 (NSW)

Cases Cited:
Australian Unity Retirement Living Management Pty Ltd v Karimbla Properties (No 10) Pty Limited [2019] NSWSC 635
Butler v Muddle (1995) 6 BPR 13,984
Byard v Co-operative Permanent Building Society Limited (1970) 21 P. & C.R. 807
Crawley v Short (2009) 262 ALR 654; [2009] NSWCA 410
Finlayson v Campbell (1997) 8 BPR 15,703
Hare v van Brugge (2013) 84 NSWLR 41; [2013] NSWCA 74
McWilliam v Hunter [2022] NSWSC 342
Middleton v Arthur [2002] NSWSC 627
Owners Corporation Strata Plan 533 v Random Primer Pty Ltd [2025] NSWCA 8
Philip v JPM Developments Pty Ltd (2015) 17 BPR 33,887; [2015] NSWSC 145
Registrar-General of New South Wales v JEA Holdings (Aust) Pty Ltd (2015) 88 NSWLR 321; [2015] NSWCA 74
Theunissen v Barter [2025] NSWCA 50
Westfield Management Limited v Perpetual Trustee Company Limited (2007) 233 CLR 528; [2007] HCA 45

Texts Cited:
J Gaunt KC and Sir P Morgan, Gale on Easements (22nd edition, Sweet & Maxwell, 2025)

Category: Principal judgment
Parties: Peter Henry Thomas (First Plaintiff) (self-represented)
Amatrin Pty Ltd (Second Plaintiff) (self-represented)
Damian Pearson (Defendant)
Representation:
Counsel:
T Alexis SC / B Michael (Defendant)
Solicitors:
Hones Lawyers (Defendant)

File Number(s): 2024/00217890
Publication restriction: Nil

JUDGMENT

Introduction

The plaintiffs and defendant own adjoining properties in Cowdroy Street in Cammeray, NSW.
The double garage used by the plaintiffs, to park motor vehicles in, is located on the Defendant’s Property (defined below). The plaintiffs’ rights to use the garage as such derive from certain easements created by transfer in late 1988.
It is not in dispute that since about the early 1990s, the area immediately above the garage has been fenced by an earlier owner of the Defendant’s Property and decking has been placed on the area immediately above the roof of the garage to enable it to be used by the occupiers of the Defendant’s Property as an outdoor area adjacent to the pool that was constructed on the Defendant’s Property in the early 1990s.
The defendant bought his property in 2016. Neither the plaintiffs nor the defendant presently resides in their properties.
In about September 2023, the defendant obtained development consent for certain works to be carried out above the garage including replacing…

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 Thomas v Pearson

Details

AGLC: Thomas v Pearson [2025] NSWSC 1127
Case: [2025] NSWSC 1127
Decision Date: 02 October 2025

CaseChat Overview and Summary

Thomas and Pearson were the respective owners of two adjoining properties. Thomas, the dominant owner, had an easement for support over Pearson's property, which was recorded as being for the purpose of parking motor vehicles in a garage. Pearson, the servient owner, subsequently built a deck and fence on top of the garage. Thomas argued that this constituted substantial interference with the easement. The court had to determine whether the easement was limited in height and whether Pearson's construction constituted a substantial interference with Thomas's rights.

The court considered whether the easement was limited in height by examining the terms of the easement and the surrounding circumstances. The court found that the easement did not explicitly limit the height of the structures that could be built over the garage. However, the court also considered the purpose of the easement, which was for parking motor vehicles in a garage. Based on this purpose, the court found that the easement was limited in height to the level of the garage roof. The court further found that Pearson's construction of a deck and fence on top of the garage constituted substantial interference with Thomas's rights under the easement.

The court's reasoning was based on the principle that an easement grants a right to the dominant owner that is limited by the terms of the easement and the surrounding circumstances. In this case, the court found that the easement was limited in height to the level of the garage roof, and that Pearson's construction of a deck and fence on top of the garage constituted substantial interference with Thomas's rights under the easement. The court found no question of principle in its decision.

The court ordered Pearson to remove the deck and fence built on top of the garage within a specified timeframe. The court also ordered Pearson to pay damages to Thomas for the substantial interference with Thomas's rights under the easement. The court found no need to award any further orders or remedies.

Orders