Twomey v Blanch

[2008] NSWSC 641

CITATION:	Twomey v Blanch [2008] NSWSC 641
HEARING DATE(S):	20 June 2008
JUDGMENT OF:	Gzell J
EX TEMPORE JUDGMENT DATE:	20 June 2008
DECISION:	Injunctions extended until further order. Costs in the cause.
CATCHWORDS:	PROCEDURE - Injunctions - Injunctions restraining excavation on right of carriageway and installing a fence along boundary of servient tenement adjacent to the right of carriageway - Expedited hearing granted - Whether interlocutory injunctions should be continued - Whether serious issues to be tried - Whether balance of convenience favoured injunctive relief
PARTIES:	Raymond William Twomey (Plaintiff) Jason Dudley Blanch (First Defendant) Clarence Dudley Blanch (Second Defendant)
FILE NUMBER(S):	SC 3041/08
COUNSEL:	Mr S Phillips (Plaintiff) Mr D O'Dowd (Defendants)
SOLICITORS:	Barraclough Jones & Associates (Plaintiff) Steven Parrott, Solicitor (Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

GZELL J

FRIDAY 20 JUNE 2008

3041/08 RAYMOND WILLIAM TWOMEY v JASON DUDLEY BLANCH & ANOR

EX TEMPORE JUDGMENT

1 There is before the Court an application to extend an injunction originally granted ex parte and subsequently continued on two occasions by consent. The injunction concerns a right of carriageway over land owned by the second defendant and occupied by the first defendant. To the east of the right of carriageway are the defendants' premises. To the west are the plaintiff's premises.

2 The defendants have had cause to complain about the use of the carriageway for loading and unloading vehicles for the five years that the first defendant has been in occupation of the site.

3 In order to protect the use that could be made of the carriageway for the benefit of the defendants' site, they commenced to erect a fence along the boundary of the site adjacent to the plaintiff’s premises. It is the erection of that fence and the carrying out of excavation work on the right of carriageway that form the subject matter of the injunction.

4 On the last occasion the injunction was extended, the first part of it was in these terms:

“The Defendants be restrained until 4.00 pm on 20 June 2008 or pending further order from:

(a) carrying out or causing to be carried out any excavation work on the right of carriageway which benefits the Plaintiff's land comprised in Folio Identifier 1/744592 ("the Roc") other than any excavation work which may be reasonably necessary to inspect the underground fuel tank located on the second defendant’s property comprised Folio Identifier 2/547482.”

5 There is no debate with respect to that aspect of the injunction. The defendants are not prevented thereby from having reasonable access to inspect the underground fuel tank.

6 It is the second and third aspects of the injunction that are in dispute. They are in the following terms:

“(b) erecting a fence between the plaintiff's property and the right of carriageway ("Roc"); and
(c) erecting further gates or any other structure which has the effect of obstructing access by the plaintiff and every person authorised by the plaintiff to use the Roc.”

7 At present there are a number of entrances from the right of carriageway to the plaintiff's premises. It is submitted on behalf of the plaintiff that three entrances are needed. One of those entrances the defendants have no objection to providing by way of a large sliding door in the proposed fence. The second entrance the plaintiff seeks is for access by customers of the plaintiff to its premises. The third access is for a forklift to be operated to load and unload material. That is necessary because of the topography of the plaintiff's land adjacent to a shed.

8 The proceedings have been the subject of an order for expedition. The matter is set down for an urgent hearing for two days commencing on 11 August 2008.

9 I have been benefited by a Google map, a diagram and a photograph that I will mark as exhibit 1 on the application.

10 In my view, there is an issue that needs to be determined with respect to any fence along the boundary of the second defendant’s property. There is also an issue to be determined as to whether or not further excavation work on the carriageway should be permitted. These are serious matters and have been clearly taken into account by the judge who issued the order for expedition.

11 It seems to me that the balance of convenience is in favour of the continuation of the injunctions in the form that I have indicated. The status quo ought to be maintained. The dispute in relation to the alleged misuse of the carriageway has continued for some considerable time and, on balance, I am of the view that injunctive relief should be continued to maintain the present position until the final hearing of the matter.

12 Upon the plaintiff by his counsel continuing the undertaking as to damages previously given to the Court, I make orders in these terms: The Defendants be restrained until further order from: (a) carrying out or causing to be carried out any excavation work on the right of carriageway which benefits the Plaintiff's land comprised in Folio Identifier 1/744592 ("the Roc") other than any excavation work which may be reasonably necessary to inspect the underground fuel tank located on the Second Defendant’s property comprised in Folio Identifier 2/547482; (b) erecting a fence between the plaintiff's property and the Roc; and (c) erecting further gates or any other structure that has the effect of obstructing access by the plaintiff and every person authorised by the plaintiff to use the Roc. I order that the costs of today’s proceedings be costs in the cause.

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