Wayella Nominees Pty Ltd as trustee for the D J Gordon Family Trust v Cowden Ltd

In this matter, Wayella Nominees Pty Ltd, as trustee for the D J Gordon Family Trust, pursued Cowden Ltd in the Supreme Court of Queensland, challenging the creation of an easement over their property. The plaintiffs sought to prevent Cowden Ltd from claiming a prescriptive right of way over a portion of their parking area. This area was allegedly used by vehicles accessing the plaintiffs' parking bays for a period of 20 years prior to the initiation of the lawsuit. The defendants contended that this continuous usage established a prescriptive easement under the Prescription Act 1832 (Imp), now replaced by the Limitation Act 1985 (Qld).

The court had to determine two key legal issues: firstly, whether the plaintiffs' vehicles had indeed used the defendants' parking area for the requisite 20-year period; and secondly, whether such usage was sufficient to create a lost modern grant, thereby establishing a prescriptive easement. The court needed to examine the evidence regarding the duration and nature of the usage, considering whether it was continuous, apparent, and without the plaintiffs' permission. Additionally, it was necessary to assess whether the usage met the statutory requirements for creating a prescriptive right.

The court found that the usage of the defendants' parking area by the plaintiffs' vehicles did not meet the necessary criteria to establish a prescriptive easement. The evidence indicated that the usage was not continuous and apparent, and the plaintiffs had not acquiesced to the usage. Consequently, the court held that no prescriptive easement had been established. The court also noted that even if the usage had been continuous and apparent, the nature of the usage, which involved vehicles briefly entering the defendants' property to manoeuvre, did not constitute the type of use required for a prescriptive easement. The court emphasised that the statutory requirements for creating a lost modern grant were not satisfied in this case.

As a result of the court's findings, Wayella Nominees Pty Ltd, as trustee for the D J Gordon Family Trust, was granted an injunction restraining Cowden Ltd from claiming a prescriptive right of way over their property. Additionally, the court ordered Cowden Ltd to pay the plaintiffs' costs of the proceeding.