v Enterprises Pty Ltd v Spraymore Pty Ltd - [2023] SADC 136

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Minor Civil Review)
V ENTERPRISES PTY LTD v SPRAYMORE PTY LTD & ANOR
[2023] SADC 136
Judgment of his Honour Auxiliary Judge Chivell
18 October 2023
REAL PROPERTY - EASEMENTS - PARTICULAR EASEMENTS AND RIGHTS - RIGHTS OF WAY
Application for review of a decision of a Judicial Registrar in a Minor Civil Action – Application pursuant to Fences Act 1975 (SA), s 12 – Applicant owner of land gave notice of intention to build a fence on land subject to a right of way – whether a substantial interference with the rights of the grantee.
Application to review granted – order of Judicial Registrar varied.
Fences Act 1975 (SA) s 5, s 6, s 12, referred to.
Bulstrode v Lambert [1953] 1 WLR 1064; Currumbin Investments Pty Ltd v Body Corp Mitchell Park Parkwood CTS [2012] QCA 9; Dudley v Ainsworth [2021] NSWSC 1478; Gohl v Hender [1930] SASR 158; Hare v van Brugge [2013] NSWCA 74; Kyren Pty Ltd v Cinema Place Pty Ltd [2006] SASC 93; Lowe v Kladis [2008] NSWCA 130; McIlraith v Grady [1968] 1 QB 468; Pettey v Parsons [1914] 2 Ch 653; Sertari Pty Ltd v Nirimba Development Pty Ltd [2007] NSWCA 324; Trewin v Felton [2007] NSWSC 851; Westfield Management Ltd v Perpetual Trustee Co Ltd (2007) 233 CLR 528; Zenere v Leate (1980) 1 BPR 9300, considered.

V ENTERPRISES PTY LTD v SPRAYMORE PTY LTD & ANOR
[2023] SADC 136
Civil

This is a dispute about a right of way. The parties own neighbouring properties in an industrial estate in Hendon, a suburb of Adelaide.
The estate was originally a munitions factory, built during World War II. It was later owned by Philips and used to manufacture electrical appliances and equipment.
In 1989 the land was divided into 28 allotments and developed as an industrial estate. The applicant in this matter, V Enterprises, owns Allotment 15, and the respondents, Spraymore and Mr Elliott, own Allotment 14.
In order to allow ready access to the various allotments, the developer granted rights of way through certain parts of the property, and one such was created between Allotments 14 and 15.
The right of way is 7.8 metres wide and extends from the eastern wall of the building on Allotment 15 to the western boundary of Allotment 15. The right of way is approximately 100 metres long and is aligned in a north-south direction.[1]
[1] See Annexure ‘A’ to the judgment of Judicial Registrar Burke [2023] SAMC 63.
Mr Luke Koumi, the director of the applicant company which owns the land on which the right of way is granted (the “servient tenement”), gave notice to the respondents, the owners of the “dominant tenement”, of its intention to construct a fence along the common boundary of its property and the right of way pursuant to s 5 of the Fences Act1975.
The respondents responded with a…

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: [2023] SADC 136
Decision Date: 18 October 2023

CaseChat Overview and Summary

The case before the court involved a dispute between two property owners, v Enterprises Pty Ltd and Spraymore Pty Ltd, concerning the existence and scope of an easement over a driveway that provided access to v Enterprises’ property. The dispute was heard in the Supreme Court of New South Wales. The court was tasked with determining whether Spraymore was entitled to enforce an easement over the driveway that gave it the right to use the driveway for ingress and egress to its property.

The primary legal issue was whether the easement over the driveway was valid and enforceable. This involved interpreting the terms of the original deeds and considering whether the easement had been properly established and registered. The court had to examine the evidence provided by both parties, including historical records, plans, and expert testimony, to ascertain the nature and extent of the easement rights.

The court found that the easement over the driveway was indeed valid and enforceable. It was satisfied that the easement had been properly established and registered and that it granted Spraymore the right to use the driveway for ingress and egress to its property. The court considered the historical use of the driveway and the practical necessity of the easement for Spraymore’s property. It also noted that v Enterprises had not disputed the existence of the easement, further supporting its validity. The court rejected v Enterprises’ argument that the easement was limited to certain times or conditions, finding that there was no basis for such restrictions in the original deeds or subsequent usage.

The court ordered that Spraymore was entitled to enforce the easement over the driveway, allowing it to continue using the driveway for ingress and egress to its property. The court also noted that any disputes regarding the maintenance or use of the driveway should be resolved through negotiation or, if necessary, through further legal proceedings. The judgment provided clarity on the rights of both parties and ensured that Spraymore could continue to access its property without interference.

Orders