Victor & Melway

In *Victor & Melway*, the Supreme Court of Victoria, presided over by Burr J, considered a dispute concerning a right of way. The plaintiff, Victor, sought to prevent the defendant, Melway, from obstructing a right of way that traversed the defendant's property. The core of the dispute lay in the interpretation of the easement granted to Victor and the extent to which Melway's actions constituted an unlawful interference with that right.

The central legal issue before the court was whether Melway's construction of a fence and the placement of a gate constituted a substantial interference with the right of way granted to Victor. This required the court to determine the nature and scope of the easement, considering the terms of the grant and the circumstances surrounding its creation. The court had to assess whether the obstruction, as it existed, prevented Victor from making reasonable use of the right of way for its intended purpose.

Burr J applied the established legal principles governing easements, particularly the test for substantial interference. The court considered the width of the right of way and the purpose for which it was granted. His Honour found that while an owner of servient land is entitled to use their property reasonably, this use must not unduly impede the rights of the dominant owner. In this instance, the court determined that the fence and gate, as constructed, did not prevent reasonable access and therefore did not constitute a substantial interference with the easement. The plaintiff's claim was accordingly dismissed.