Weigall v Toman

[2006] QSC 349

SUPREME COURT OF QUEENSLAND

CITATION:

Weigall v Toman [2006] QSC 349

PARTIES:

LUCY ELISABETH WEIGALL
(applicant)
v
DORIS MARY TOMAN
(respondent)

FILE NO:

BS 7784/06

DIVISION:

Trial Division

PROCEEDING:

Originating Application

DELIVERED ON:

23 November 2006

DELIVERED AT:

Supreme Court, Brisbane

HEARING DATE:

28 September 2006

JUDGE:

Wilson J

ORDER:

1.   Application for the orders sought in paragraphs 1 and 2 of the originating application dismissed.

2.   Application for an interlocutory injunction dismissed.

3.   Costs of and incidental to the application heard 28 September 2006 to be paid by the applicant, assessed on the standard basis.

CATCHWORDS:

REAL PROPERTY – EASEMENTS – EASEMENTS GENERALLY – OTHER MATTERS – where the applicant purchased land over which the respondent holds an easement – where the easement grants the respondent exclusive use of a garage that stood on a section of the easement – whether the easement is valid

Attorney-General of Southern Nigeria v John Holt & Co (Liverpool) Ltd [1915] AC 599, considered
Batchelor v Marlow [2001] 1 EGLR 119, considered
Clos Farming Estates Pty Ltd v Easton [2001] NSWSC 525, cited
Copeland v Greenhalf [1952] Ch 488, considered
Grigsby v Melville [1972] 1 WLR 1355, considered
Harada v Registrar of Titles [1981] VR 743, considered
London & Blenheim Estates Ltd v Ladbroke Retail Parks Ltd [1992] 1 WLR 1278, considered
Mercantile General Life Reassurance Co v Permanent Trustee (1988) 4 BPR 9534, considered
Miller v Emcer Products Ltd [1956] Ch 304, considered
Moncrieff v Jamieson [2004] SCLR 135, considered
Reilly v Booth (1890) 44 Ch D 12, considered
Re Ellenborough Park [1956] Ch 131, considered
SS & M Ceramics Pty Ltd v Kin [1996] 2 Qd R 540, cited
Ward v Kirkland [1967] Ch 195, considered
Wright v Macadam [1949] 2 KB 744, considered

COUNSEL:

D Bates for the applicant

RM Treston for the respondent

SOLICITORS:

McCullough Robertson Lawyers for the applicant

Harrisons for the respondent

1. WILSON J:  The applicant is the owner of a property at Redcliffe over part of which there is an easement in favour of the respondent. By an originating application the applicant seeks the following orders –

“1.a declaration that Easement No 60766681 (‘Easement’) is invalid;

2.the Registrar of Titles replaces the Easement on the Register of Titles with an amended Easement, which excises the invalid parts of the Easement;

3.further or alternatively, the Respondent by herself, her employees, servants, or agents, or any of them, or otherwise howsoever, be restrained from driving or parking any vehicle over or upon the Easement;

4.the Respondent pay the Applicant’s costs of the application.”

1. Both the applicant’s property and the respondent’s have frontage to Moreton Bay. There is a house on each property. The applicant’s property, 26 Whytecliffe Parade, Woody Point, is more particularly described as lot 20 on RP 169304 (“no 26”). It is a battle-axe shaped block: a narrow strip of land (the handle of the axe) runs from Whytecliffe Parade to the main part of the block (the blade…