Yarak Pty Ltd v Emerson Holdings (Aust) Pty Ltd
[2024] VCC 371
•27 March 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMERCIAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-22-02103
| YARAK PTY LTD (ACN 105 327 688) and HANNA YARAK | First Plaintiff Second Plaintiff |
| v | |
| EMERSON HOLDINGS (AUST) PTY LTD (ACN 648 289 187) | Defendant |
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JUDGE: | HIS HONOUR JUDGE MACNAMARA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21-23 February, 26-27 February, 8 March 2024 | |
DATE OF JUDGMENT: | 27 March 2024 | |
CASE MAY BE CITED AS: | Yarak Pty Ltd & Anor v Emerson Holdings (Aust) Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 371 | |
REASONS FOR JUDGMENT
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Subject:NUISANCE AND TRESPASS
Catchwords: Easement of carriageway created as part of subdivision in 1963 – open land existing at the rear of the dominant tenement at the date of creation – dominant tenement subsequently entirely built up so that no vacant land remains – easement of carriageway constituted by a dead end extension to public laneway – whether right to load and unload on easement to be implied – determination to be made by reference to existing condition and the state of the register under the Transfer of Land Act 1958 – historical investigation excluded – alleged private nuisance constituted by delivery vehicles blocking public laneway thereby depriving abutting land owner of access – laneway subject to “no stopping” parking restriction – no injunction granted with respect to the public laneway – small award of damages – counterclaim seeking injunction precluding owner of servient tenement from communicating with delivery persons – counterclaim dismissed – alleged nuisance constituted by unreasonable flows of water from dominant tenement onto servient tenement – matter within the exclusive jurisdiction of the Victorian Civil and Administrative Tribunal
Legislation Cited: Liquor Control Reform Act 1998 (Vic); Transfer of Land Act 1958 (Vic); Planning and Environment Act 1987 (Vic); Evidence Act 2008 (Vic); Real Property Act 1900 (NSW); Road Safety Road Rules 2017 (Vic); Water Act 1989 (Vic); Supreme Court Act 1986 (Vic)
Cases Cited:Westfield Management Limited v Perpetual Trustee Company Limited (2007) 233 CLR 528; Dasreef Pty Limited v Hawchar (2011) 243 CLR 588; Perpetual Trustee Company Limited v Westfield Management Limited [2006] NSWCA 337; Cannon v Villars (1878) 8 Ch D 415; Bulstrode v Lambert [1953] 1 WLR 1064; Currumbin Investments Pty Ltd v Body Corp Mitchell Park Parkwood CTS [2012] QCA 9; Mantec Thoroughbreds Pty Ltd v Batur [2009] VSC 351; London and Suburban Land and Building Co (Holdings) Ltd v Carey (1991) 62 P&CR 480; Elliott v Renner [1923] St R Qd 172; Gallagher v Rainbow & Ors (1994) 179 CLR 624; S.S. & M. Ceramics Pty Ltd v Kin [1996] 2 Qd R 540; McIlwraith v Grady [1968] 1 QB 468; Hoy v Allerton & Anor [2001] QSC 440; Stoneman v Lyons & Ors (1975) 133 CLR 550; Day v Ocean Beach Hotel Shellharbour Pty Ltd (2013) 85 NSWLR 335; Walsh v Ervin [1952] VLR 361; McFadzean & Ors v Construction, Forestry, Mining and Energy Union & Ors (2007) 20 VR 250; Trewin v Felton (2007) 13 BPR 24,579; Pride of Derby and Derbyshire Angling Association Ld & Anor v British Celanese Ld & Ors [1953] 1 Ch 149
Judgment: 1. Within 14 days the parties must bring in short minutes to give effect to these reasons
2. Costs reserved
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr A J McNaught | Franzese & Associates |
| For the Defendant | Mr A Christophersen | Sinisgalli Foster Legal |
HIS HONOUR:
Background
1In 2003, Yarak Pty Ltd, the first plaintiff, purchased the freehold of 139 Commercial Road, Prahran. That company’s principal, Mr Yarak, the second plaintiff, commenced carrying on a café/fast food outlet known as Lambs that same year (Transcript (“T”) 76, Line (“L”) 24 – T77, L5). The adjacent premises to the east of 139 Commercial Road was then known as the Market Hotel (T77, L13‑17). The next door premises, which were formerly the Market Hotel, now hosts a nightclub venue known as “the Emerson”, which is the holder of a late night (general) licence under the Liquor Control Reform Act 1998 (Court Book (“CB”) 171‑2). Emerson Holdings is the defendant in this proceeding. The premises include three licensed levels. The licence permits a maximum of 290 patrons on the ground floor, 230 patrons on the next level and 306 on what is described as Level 3 (referred to in Anglo-Australian language as the second floor). There is an overall limit for the entire venue of 675 patrons (CB 171-2).
2This proceeding concerns a dispute over the entitlements of Yarak Pty Ltd as owner and Mr Yarak as occupier of 139 Commercial Road relative to an easement of way appurtenant to the nightclub premises created by Plan and Subdivision No LP61874, which was approved and registered in 1963 (CB 128). A view conducted at the outset of the trial showed that No 139 Commercial Road and the nightclub were part of a single pre-World War II building dating perhaps to before World War I. In the imperial measurements used in Australia in 1963, the plan of subdivision showed the Emerson block, being Lot 2 on the relevant plan, as having a frontage of 66 feet and Yarak’s allotment, being Lot 1, as having a frontage of 15 feet and 11 inches, and the two allotments are almost rectangular. The depth of the Emerson allotment at the eastern boundary is, again in the old measurements, 113 feet, 4 inches (CB 140). The boundary of No 139 Commercial Road was, according to the plan of subdivision, some 92 feet, 10 inches from the intersection of Commercial Road and Balmoral Street (CB 128). The plan of subdivision created an easement some 15 feet wide and 12 feet deep at the rear of Lot 1, viz 139, for the benefit of Lot 2, the Emerson allotment (CB 128). Under section 98 of the Transfer of Land Act 1958, this area was designated on the plan of subdivision as E‑1 and coloured blue. According to the notation “[t]he land coloured blue is an easement set apart for Carriageway Drainage and Sewerage purposes” (CB 66). Sub-section 72(3) of the Transfer of Land Act 1958 in its present form states:
“When in any folio of the Register or instrument an easement is referred to or created or reserved by the use of the words ‘Together with [ or Reserving] a right of carriage-way over’ [ specifying the roads subject to the easement and referring to a map or plan of subdivision ] such words shall have the same effect and shall be construed as if the words contained in the Twelfth Schedule had been inserted in the folio of the Register or instrument.”
The Twelfth Schedule to the Act provides as follows:
“Twelfth Schedule – Right of carriage-way
Together with full and free right and liberty to and for the registered proprietor for the time being of the land herein described [ or hereby transferred or as the case may be ] or any part thereof and his tenants servants agents workmen and visitors to go pass and repass at all times hereafter and for all purposes and either with or without horses or other animals carts or other carriages into and out of and from the said land or any part thereof through over and along the road or way or several roads or ways delineated [ and coloured brown ] on the said map [ or plan of subdivision].”
3A fundamental question which will need to be resolved in this proceeding is the extent to which the history of title boundaries and the easement may be relied upon for the purposes of determining the true meaning and scope of the easement as created. Counsel for Emerson, Mr Christophersen, relied on remarks by the High Court consisting of Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ in Westfield Management Limited v Perpetual Trustee Company Limited (2007) 233 CLR 528 (Westfield case), 539‑540 [37]-[44] to contend that these historical matters were inadmissible. He objected to his opponent, Mr McNaught, for the plaintiffs, relying upon these matters (T16, L21‑30). I was conscious of the High Court’s strictures against deferring until the final determination of a proceeding evidentiary objections taken therein – Dasreef Pty Limited v Hawchar (2011) 243 CLR 588, 599 where French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ said at paragraph 20:
“ It is only for very good reason that a trial judge should defer ruling on the admissibility of evidence until judgment. This was not such a case. Yet the primary judge did defer ruling on the disputed evidence in this matter until judgment. And because that is what the primary judge did, the evidence of Dr Basden was used for purposes for which it was not admissible and for which it may be doubted that Mr Hawchar had sought to tender it.”
In this case, the application of the High Court’s statements in the Westfield case I felt would “probably be the hinge on which the entire outcome of this proceeding is going to turn.” (T17, L8‑10) Therefore, it would seem inappropriate to seek to resolve the matter “on the run” in an evidentiary ruling. Accordingly, with the approval of counsel, I deferred ruling on Mr Christophersen’s objection. Insofar as I traverse historical matters in the course of this “background” section, it is subject to the determination which I will express below as to the application in these circumstances of the High Court’s remarks in Westfield.
4Whatever may have been the relative state of the Emerson allotment and the Yarak allotment in 1963, Mr Yarak’s allotment retains a traditional backyard behind the shop and upstairs residence. The view and the number of photographs – see, for instance, CB 270 and 270 – disclose that neither the Yarak allotment nor the other allotments abutting a right of way which runs at the rear of the allotment from the eastern side of Balmoral Street to the rear of the Emerson allotment have back fences separating the backyards from the right of way. The photographs show that the right of way running east from Balmoral Street terminates at the western boundary of the Yarak allotment where the laneway apparently continues crossing the rear of the Yarak allotment on the area affected by the easement. The easement, 15 feet across in the old imperial measurements, terminates at a “roller door” set in the western boundary wall of the Emerson allotment (CB 271).
5When Mr Yarak took up residence on the Yarak allotment in 2003, he said there were deliveries being made to the Emerson allotment which was then operated as the Market Hotel (T77, L19‑20). These were done, he said, by vans, small trucks utilities or vehicles up to 3 tons. He said, “like only 20 time, or 15 times”, presumably per week (Ibid, L21‑27). He said, as far as he was concerned, there were no “issues” with the operation of the carriageway easement from 2003 to 2007 (Ibid, L28-29). According to Mr Yarak:
“2006 and 7 and 8, about this time, the law becoming as, you can’t smoke inside the premises in a bar and restaurant. If you operate, you have to (indistinct) open area for smoking. So that’s why, for these purposes, he extended, and he make a rooftop as open for the smokers, because they can't smoke. That's what I understand. That’s what I’ve been told from the owner, and that’s what the law has become back then, 2007, I think. And he extended then, and comes the issue for me.” (T78, L7‑16)
In a proceeding before the Victorian Civil and Administrative Tribunal in 2013, according to Mr Yarak:
“The owners lodge a permit to get a rooftop and get more people to the club. And my concern is already with (indistinct) and the blockage, and that’s my concern. And when he’s coming to discuss with the council and with us, and say we don’t have to worry about it, because we knock it down, make it wider. All the delivery will be inside. You don’t have any problem anymore. That’s not my concern. Not my concern because they want to open the rooftop, or they do anything in their property. It doesn’t affect me at all. Only we object because more people is more trouble, more delivery, more blockage. And he promised me, said, no, we - - -“ (T79, L14‑26)
Mr Yarak said he was speaking to a Mr Hinkley (Ibid, L27). Mr Hinkley was apparently the principal of a company known as Tadcaster Commercial Pty Ltd, which at that time was the owner or operator of the venue on the Emerson allotment.
6The precise purport of what took place in 2013, as described in Mr Yarak’s evidence referred to above, is somewhat uncertain.
7Mr McNaught, on behalf of the plaintiffs, produced a document under cover of a letter from the City of Stonnington, the responsible authority under the Planning and Environment Act 1987 for the area, in which counsel approved an amendment to Permit 0684/11-2. Attached to the amended permit were a series of plans. The status of this permit and the amendment remained unclear. Permits are, by their nature, permissive. An applicant obtaining a permit to erect a structure is not obliged to erect it. On the other hand, if the structure is erected, the proponent is responsible for compliance with the conditions. Hence, I asked Mr McNaught whether the relevant permit had been acted upon. He replied, “[n]ot that I’m aware of” (T4, L18‑19). [The transcript for reasons unexplained was paginated 1 to 54 with the first day of sitting on 21 February but recommences at page 1 on the second day. The page number quoted is from Day 2.] The attached plan depicts the roller door as having a height of 3.3 to 3.6 metres (T228), but the present roller door is 2.1 metres (T229, L7‑9). The stamp on the plans show them as having been submitted to Council as long ago as 19 April 2013; that is, before Emerson became the venue operator.
8I was also referred to planning permit 87/415 issued by the City of Prahran in October 1987 which included Condition 12, stating:
“The loading and unloading of vehicles and the delivery of goods to and from the premises [on what is now the Emerson site] shall at all times be carried on entirely within the site and be so conducted as to cause minimum interference with other vehicular traffic.” (CB 517-520)
Mr Christophersen, on behalf of Emerson, referred to a later planning permit issued by the City of Stonnington as responsible authority, No 0233/99 (2 July 1999) Condition 4 stated “[a]dequate provision shall be made for the storage and collection of garbage and other solid wastes within the curtilage of the site.”
9The present state of the Emerson allotment, as shown by a range of photographs to be found in the Court Book and the view carried out at the beginning of the trial (see s54 of the Evidence Act 2008) discloses that the buildings on the allotment cover 100 per cent of its footprint. Whatever may have been the situation in 1963 at the time of subdivision and creation of the relevant easement or at any intermediate date, there is no backyard or open area where loading and unloading of items delivered to Emerson may be carried out. I was referred to a building permit dating from 1964 issued by the City of Prahran under the uniform building regulations, which showed “a block plan” for what is now the Emerson allotment depicting approximately 40 per cent of the allotment at the rear as being open ground. It also depicts an outbuilding at the north-east corner of the allotment, that is on the corner at the rear further from the Yarak allotment (CB 291). On the view, I observed that immediately above the 2.1 metre high roller door was a complex of air-conditioning ducts, apparently part of the air-conditioning system for the venue. The area behind the roller door, which has been referred to in evidence as the “loading bay” is cramped and filled with a variety of items, including a refrigerator. Also located in this area are some seven garbage or recycling receptacles which might be regarded as very large bins (on four wheels) or small size skips. Space in this area is at a premium.
10The northern boundary of the laneway is constituted by a two-storey masonry wall built along the boundary line for the entire length of the laneway and the area immediately at the rear of the Yarak allotment. It abuts the multistorey western wall of the Emerson, in which wall the roller door is set. The premises immediately to the west of the Yarak allotment, that is on the other side of the Yarak allotment from the Emerson, is a Japanese restaurant which has a brick outbuilding erected to the southern boundary of the laneway. The area of the Yarak allotment affected by the easement is, to all appearances, as disclosed by the view and the various photographs in the Court Book, a continuation of the laneway (CB 271-2).
11The Court Book at pages 293‑310 includes a series of aerial photographs of the Emerson site, commencing with the first in 1999 and the last in April 2023. The April 2023 photographs at CB 310 depict the complex as we observed it on the view. Earlier photographs, commencing in 1999 and following in 2002, 2004 and 2006, depict a small triangular area at the north-west corner of the allotment; that is, at the corner where the roller door is now located, apparently open to the sky. The images from 2007 onwards, whilst showing a different layout from the present, appear to show the entirety of the site roofed in. The open area depicted from 1999 to 2007 appears generally to correspond with what is now the loading bay. Whether the correspondence is exact or not, the area seems too small to operate as a loading bay in the fullest sense; that is, an area which might be entered by delivery vehicles allowed to stand entirely on the Emerson allotment for the purposes of loading or unloading.
12In 2018, Yarak, as the owner of its allotment, and Tadcaster Commercial Pty Ltd (“Tadcaster”), as the operator of the venue now known as the Emerson, entered into a licence agreement (CB 92‑104). The copy in the Court Book is undated. According to the face sheet of this document, it concerned “Licensed Area E‑1 on LP61874, 139 Commercial Road, South Yarra”; that is, the area of the easement (CB 92). The licence provided for an initial five-year term commencing 1 October 2018 and ending 30 September 2023 (Clause 3.1, CB 95) with an option exercisable by Tadcaster for a further five-year term (Ibid, Clause 3.2). Clause 3.3 provides for a second five-year option of renewal. A fee was payable to Yarak monthly, commencing 1 October 2018 (Clause 5.2, CB 96) subject to provision by Yarak of a tax invoice (Ibid, Clause 5.3). Clause 6.1 provided that the licensed area could only be used for the “Permitted Use” (Ibid, Clause 6.1) which was described in Schedule A as follows:
“The right of the Licensee [Tadcaster], the Licensee’s Personnel to park or stop vehicles on the Licensed Area for the purpose of loading and unloading persons or goods for delivery to the Emerson Property.” (CB 101)
The licence fee payable was $1,100 per month indexed by 3 per cent per annum (CB 101). This agreement seems to have lapsed when Tadcaster ceased to be the venue operator and Emerson took over. This licence agreement, it would seem, was entered into in the wake of earlier litigation in which Yarak and Mr Yarak raised complaints relative to the use of the easement along the same lines as those that they make in this proceeding.
13In 2013, a review application made by a number of objectors, including Yarak Pty Ltd, against Stonnington City Council’s grant of a permit to Tadcaster was before the Victorian Civil and Administrative Tribunal. The proceeding was, according to Minutes of Consent Order dated 22 February 2013, resolved by consent of the various parties on the basis, according to Order No 2, “[t]he application is allowed in part”, with the terms on which the relevant permit was granted being modified so as to extend to:
“ Part demolition, buildings and works to an existing nightclub in a Business 1 Zone, Heritage Overlay and Design and Development Overlay, and a subsequent increase to the area where liquor is allowed to be consumed or supplied and a variation to the hours of operation.” (Order No 3)
Mr Yarak described what happened in a passage quoted at [5] above.
Mr Yarak said that the “he” to whom he referred was Mr Mark Hinkley, the principal of Tadcaster (T79, L27). Neither Mr Yarak’s explanation, nor the Consent Orders which were not accompanied by any plans, endorsed or otherwise, gives me a clear idea of precisely what the effect of the Tribunal’s consent determination was. This is apparently linked to the 2021 permit amendment to which I referred above (T80, L9‑10). Seeking to clarify these matters, Yarak’s counsel, Mr McNaught, asked Mr Yarak “in that period around 2013, what sort of issues then were you having with the laneway and the easement?” Mr Yarak replied:
“The blockage. The similar issue we have, same issue, because it’s blocked, and we continue, what the current people now. Actually, he still owns – the same owner, still involved with the club. I’m not sure – last time, I understand, if I’m not wrong, he’s still involved, the same person.” (T81, L16‑21)
14Mr Yarak described deliveries being made to the Emerson via the easement –“from Wednesday to Sunday. Could be at night time, could be day, could be any time.” (Ibid, L26‑27) He said:
“Some days the laneway blocked all day. One van coming in, truck, stop. Leave, second one coming. Leave, second…coming. Leave, DJ coming. Leave – we can’t monitor 24/7...” (T82, L1‑4)
Asked how long delivery vehicles remained, Mr Yarak said “[f]rom five minutes to two hours. Sometimes all day.” (Ibid, L9‑10) Mr Yarak said he had downloaded CCTV footage “…from my cameras. And with accurate date and time.” (T83, L7‑8) I observed on the view that both Emerson and Yarak have CCTV cameras covering the laneway and easement adjacent to the roller door on the Emerson property.
15Mr Yarak said that he personally had observed persons in the Emerson loading bay hosing it out with the water running onto the easement. He complained that allowing the water and hosed out material to flow onto the easement and hence onto his property was unfair. He said, “[s]o it’s not good healthy, safety, and they can’t do it, because they must have their own washing area, that’s the law…” (Ibid, L28-30). He said the people from the Emerson “sometimes they leave a mess, sometimes they clean.” (T84, L6‑7) Mr Yarak referred to “altercation chemical [sic], and they hose into my property.” (T84, L13‑14) He continued “they leave it there, and to dry to the stormwater.” (Ibid, L23) He said, “now the brick coming up” (Ibid, L27-28). Mr Yarak objects to delivery and other vehicles associated with the Emerson parking on his easement. Where the vehicles stop short and park at the end of the laneway and not on the easement, he still objects, saying “[i]t’s block access to my property.” (T85, L18‑19) He said, “I am not able to back out last three years.” (Ibid, L22-23) He complained of an incident where he was blocked from obtaining a prescription from his doctor and having it filled (T85, L26 – T86, L10). Mr Yarak said that persons associated with the Emerson smoked on his property “any time they want.” (T86, L15‑21) He explained “…like the workers have shifts, they go outside and smoke in the backyard, and on my property. And then during the day when they have tradesmen, again, they work inside my property, cutting, smoking, using my washing area to use their tools.” (Ibid, L24‑28) He complained there were cigarette butts left on the ground (T87, L18‑20). He said these butts had to be cleaned up by his wife or his son (Ibid, L28-30).
16Until 2021, according to Mr Yarak, the venue’s rubbish bins were placed on Balmoral Street. These were smaller, perhaps half the size of the skips or bins now used by the Emerson (T88, L13‑20).
17A series of videos taken ostensibly from cameras controlled by Mr Yarak and his company, but also from videos controlled by Emerson, was played during the course of the trial. They depicted a number of scenarios, including persons who entered or left the Emerson complex via the roller door, parking vehicles on the laneway, less frequently parking vehicles on the easement, unloading items and leaving them temporarily on the easement. In at least one incident, a small sedan was seen to be parked for some hours off the easement and in the backyard of the Yarak property. An individual was seen to be standing smoking off the easement and in the Yarak backyard. In one incident, which apparently occurred on 13 April 2022, video 91, a vehicle was delivering a number of beer kegs from a truck parked down the laneway with the kegs being moved across the easement on a “pallet jack”, and Mr Yarak appears in what seemed to be a highly agitated state, speaking and gesticulating. The video as presented depicted events happening at high speed, adding no doubt an air of frenzy to the proceeding. Nevertheless, a further video, with audio created by a mobile phone held by someone inside the Emerson, recorded Mr Yarak speaking in a loud and very agitated voice, consistent with the agitation evident in his body language as depicted in the main video. Two police officers arrived seeking to calm the situation down.
18Other videos were shown, albeit without audio, showing Mr Yarak confronting and remonstrating with a variety of people, including delivery and employees of the Emerson.
19The mobile phone footage was created by a lady known as “Amelia”, one of Emerson’s managers. According to Mr Christophersen “she resigned following this particular incident.” (T178, L12‑13)
20A sign to the left of the roller door states as follows:
“DELIVERY DRIVERS:
PLEASE MAKE SURE TO PARK YOUR VEHICLE 5 METRES BACK FROM OUR DELIVERY DOOR AND ALLOW FOR ACCESS AND EGRESS OF OUR NEIGHBOURS
ANY ISSUES OR TO GET ACCESS TO OUR DOOR FOR DELIVERIES PLEASE CONTACT 04[XX XXX XXX]” (CB 273)
21On 1 September 2022, an executive of Carlton & United Brewery (“CUB”), a supplier to the Emerson, sent an email to Mr Hinkley who, it will be recalled, was the principal of Tadcaster and apparently remained in an interim “hand over” capacity involved in the then new management after the takeover by Emerson. The email from Anthony Armstrong of CUB to Mr Hinkley stated:
“Hi Mark,
As you can see, we have a major problem here. Our drivers are now refusing to deliver to the Emerson. In this day and age, people do not need to be abused, they are just doing a job. Our company is just trying to do the best they can with the delivery information supplied by the Emerson. If you could please help us resolve the situation. Until then we can only be guided by your company where to deliver.
We look forward to hearing back from you with the best outcome.” (CB 164)
Earlier that same day, there was email correspondence from distribution company known as “CVC” to Asahi and Asahi Global, stating as follows:
“ Driver called about a delivery yesterday to The Emerson.
He followed below instructions and apparently its all a no standing zone.
The neighbour came out abusing him and taking photos and just going off.
Can you check out if there is any other options? As drivers don’t need to be abused.” (Ibid)
22The laneway, as distinct from the easement, is signed with a symbol consisting of an “S” and a diagonal line running through it which, according to Mr Christophersen, constitutes a “no stopping zone”.
23Emerson’s first and principal witness was Mr Ashraf Ahmed Ibraheim, who is “one of the directors on a hospitality group including ownership of Emerson Hotel, which is Emerson Holdings.” (T182, L29-31) He said he would “sit down with the general managers and the venue managers on a weekly basis, debrief, brief, and move forward and make sure the top client points of the business are being operated and adhered to correctly.” (T183, L2-6)
24Mr Ibraheim’s role extended across a number of venues operated by different companies in the corporate group, and his visits to and involvement with the operation of the Emerson in Commercial Road was by way of general oversight rather than full-time, onsite management.
25Mr Ibraheim said that as to deliveries to the rear of the Emerson in the three years since Emerson Holdings, took over as the venue operator in Commercial Road, the first six months entailed, as he saw it, an attempt by Emerson to reach a commercial arrangement with Mr Yarak and his company. In the following 30 months, with no agreement having been reached, Emerson “moved to making sure that everything goes out the front. There’s a very limited number of items – well, as we saw from the videos, that have to go through the back.” (T186, L21-27)
26He said these items included “Cookers Oils”, which provides a service in changing over the cooking oils used on the premises, deliveries of Supagas, and an organisation known as Paramount, which provide deliveries of liquor items. He said Emerson tries to use as few suppliers as possible. Boutique and singular liquor suppliers he said came through the front door, but deliveries from Paramount and beer kegs came through the rear. Asked to give examples of items previously delivered via the rear, which “now come through the front”, Mr Ibraheim said:
“ Orange juice, chicken, eggs, meat, vegetables, lemons, limes, all of that produce for the kitchen that comes from small, boutique suppliers, everything comes through the front.” (T186 and 187, especially T187, L28-31)
27He said that deliveries to the front of the premises had vehicles parking “[i]n the loading zone out the front.” (T188, 1-3) There is a loading zone at the front of the Emerson operative from 7.00am to 4.30pm Monday to Friday. This area is a “tow away zone” from 4.30pm to 6.30pm on weekdays and provides one hour parking 9.00am to 4.30pm on Saturday and Sunday (CB 269).
28Mr Ibraheim said that the roller door was also used where:
“ People have bookings for bar mitzvahs and twenty-firsts and fiftieths so they come and decorate the venue. So there's different rooms that can be hired so they come and decorate their function space the way they see fit with their balloons and their bits and pieces and they usually bump in their stuff from the front door and bump out their stuff through the front door.” (T188, L21-28)
29Under cross-examination, however, Mr Ibraheim agreed that the decision as to whether a delivery was made at the front door via the loading zone in Commercial Road, or at the rear via the easement and the roller door, was made “entirely by the third parties who make the deliveries”. (T203, L14-16)
30As to the issue of suppliers being deterred by the activities of Mr Yarak, Mr Ibraheim said “I think we’re on about our fourth truck company as a rubbish removal company. That’s my estimate.” (T218, L16-18)
31In contrast, Mr Sutton, who has worked at the venue since 2018 and therefore whose knowledge of the issues associated with the easement and roller door goes back to the Tadcaster regime (T247, L25-29), said that for a considerable time whilst he was venue manger, he attended to the placing of orders and the deliveries were made in accordance with the directions which he placed on the relevant order (T257).
32Mr Sutton observed, however:
“So generally speaking even if you give people instructions doesn't mean they are always going to actually do what you've asked them to do. So then normally, especially when you get them on the phone it's like, 'Hey, you've got to deliver out the back', 'No worries, I will come down. Give me two seconds.' Get down there, you then ask them to - if they are doing the wrong thing, to move their car back or to try and get it into a position…” (T260, L17-27)
33Mr Sutton said he was unaware of any change in policy as to the making of deliveries or a preference for the loading zone rather than the roller door (T297, L12-14).
34Mr Sutton said that insofar as drivers might use the loading zone rather than the rear roller door, that was their decision. That they had not been instructed to do so (T298, L19-21).
35The only two rubbish removal companies mentioned by Mr Ibraheim were Veolia and Suez. The name “Suez” appears on the rubbish skip which was seen on the view. Mr Sutton said he understood that “Suez” and “Veolia” were the same entity:
“Some sort of corporate changeover essentially. We’ve used the same bin company the whole time that I’ve been there but the name change happens with takeover, to my knowledge a French company.” (T265, L2-7)
36Emerson’s evidence on these matters is somewhat inconsistent.
This proceeding
Plaintiffs’ claim
37Solicitors acting for Yarak Pty Ltd and Mr Yarak filed a Writ dated 1 June 2022 commencing this proceeding.
38The plaintiffs’ Statement of Claim alleged the facts as to the title of the two allotments and the creation of the easement, continuing so as to say that the easement:
“ did not permit…[Emerson or any other person] to stop upon the Easement of Way for the purpose of loading and unloading goods to and from [the Emerson allotment], or otherwise to place items and wash them on the Easement of Way.” (Statement of Claim, [5])
39It was said that Emerson:
“ …places, stores and washes items and rubbish bins on the Easement of Way, parks its vehicles on the Easement of Way and allows delivery vans and other vehicles to park on the Easement of Way for the purpose of loading and unloading goods…” (Ibid, [6(a)])
40Further, it was said that Emerson parks vehicles and allows other persons to park vehicles partly on the Easement of Way “and partly on the public road Balmoral Lane South Yarra, for the purpose of loading and unloading goods” (Ibid, [6(b)]).
41Finally, it was said that Emerson “places, stores items, parks vehicles and conducts washing on other parts and areas of [Yarak’s] land which is not the subject of the Easement of Way” (Ibid, [6(c)]). These actions were alleged to constitute a trespass or, alternatively, a nuisance.
42The plaintiffs claim an injunction restraining the alleged wrongful acts, damages and costs.
Defence and Counterclaim
43In its Defence and Counterclaim dated 29 July 2022, Emerson did not deny the allegations as to the relative titles of the allotments and said further:
“(a)the easement is a dead-end, in that it does not provide way or carriage to any area other than the rear of the dominant tenement;
(b)the dominant tenement operates, and has always operated a commercial business from which passage of goods is to be expected;
(c)there is no other way, other than the easement, to access the rear of the dominant tenement;
(d)in the premises, it is necessarily implied in easement E-1 that the grant or right of way in favour of the Defendant includes an ancillary right to stop vehicles on the easement for the purpose of loading and unloading goods to and from the dominant tenement, or to otherwise use the easement for reasonable business purposes; and
(e)without such an implied term, the occupant from time to time of the dominant tenement cannot substantially enjoy the easement which has been reserved for its use.” (Defence and Counterclaim, [5])
44Emerson admitted that “from time to time delivery vehicles stop on or near the easement for the purposes of loading and unloading goods into and out of the Emerson…” (Ibid, [6]).
45Emerson said that there was a “loading bay door” at the rear of its premises “which abuts [the easement]” and that it uses that door to accept deliveries and allow entry of staff and contractors. It said that since it has become the occupier of the Emerson, Mr Yarak “has regularly abused [Emerson’s] staff and contractors and has prevented [Emerson] from using [the easement] and from using its loading bay door”. This abuse, it says, was “an interference with [Emerson’s] right to quiet use and enjoyment of its land and an interference with [Emerson’s] right to conduct trade and commerce from the Emerson” and was “a substantial and unreasonable interference with the aforesaid rights” (Ibid, [10]-[13]).
46It said that Emerson’s staff had “suffered from stress and anxiety as a result of the Abuse”. Emerson had missed deliveries and been restricted in the disposal of rubbish and incurred further expense “as a result of having to take deliveries at the front of the property rather than at the rear through the loading bay door”. As a result of which it is said Emerson have “suffered loss and damage” (Ibid, [13]-[14]).
47By way of Counterclaim, Emerson sought:
“ A mandatory permanent injunction restraining [Mr Yarak] from interfering with [Emerson’s] use and enjoyment of its land, including a restraint against [Mr Yarak] from approaching or talking to [Emerson’s] directors, agents, staff or contractors in or around the rear of [Yarak Pty Ltd’s] property.” (Ibid, [A])
Reply and Defence to Counterclaim
48In their reply and Defence to Counterclaim, Yarak Pty Ltd and Mr Yarak said that:
“At the time of the creation and grant of the easement in 1963, buildings were erected on 141-145 Commercial Rd South Yarra which did not extend more than one half of the length of the Dominant Tenement.
At the time … all persons, cars and vehicles were able to pass and repass to and from the Servient Tenement and Dominant Tenement.
… From 1963 to 2007 the owners of the [Emerson allotment] progressively extended the buildings located on the [Emerson allotment], resulting in the full extent of the [Emerson allotment] … being covered by buildings, and leaving a small opening at the boundary … which abutted the easement …” (Reply and Defence to Counterclaim, [1])
49As a result of those alterations, it was said “there is no room for cars and other vehicles to pass and repass from the E1 easement [to the Emerson allotment]”, and that by reason of the alterations “the easement is a ‘dead end’” with no thoroughfare being possible (Ibid).
50Therefore by reason of their actions the owners of the Emerson allotment had “extinguished part of the effective use of the easement by cars and other vehicles.” Therefore the owner of the Emerson allotment was “responsible for it not being able to full [sic] enjoy the use of the easement and not [Yarak Pty Ltd or Mr Yarak]” (Ibid).
51Further, they said “cars and other vehicles stop on or near the easement in breach of the grant…which include stopped for extending periods” on the easement on the property at 139 Balmoral Lane. Partly on the easement and on Balmoral Lane (Ibid, [2]).
52Further, it was said that Emerson’s “agents and offices [sic] wash articles and discharge liquids on the easement…” (Ibid).
53They otherwise denied the allegations in the Counterclaim.
Conclusions
The Westfield case
54In Westfield Management Limited v Perpetual Trustee Company Limited (2007) 233 CLR 528, 539-540 [37]-[44], the High Court consisting of Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ, considered what regard might be had to history surrounding the creation of an easement registered under the relevant Torrens system statute (in that case the New South Wales Real Property Act) for the purpose of determining the true construction of the easement. Mr Christophersen contends that the effect of their Honours’ analysis was to exclude any historical analysis which sought to ascribe a meaning to the easement by reference to the events which occurred at or around the time of its creation.
55In the Westfield case, the court was concerned with the true construction of an easement created and registered in 1988, some 19 years prior to the hearing before their Honours and 18 years prior to the trial. This is a much lesser period than the lapse of 60 years since the creation of the easement in this proceeding.
56The easement, as created and described as a “right of way” in the Westfield case, ran “by subterranean passage or driveway across and beneath the Glasshouse land [the servient tenement] to the boundary of” a multistorey building known as the Skygarden [the dominant tenement]. By the time the matter came before the courts, both dominant and servient tenements were owned by successors to the original owners. Westfield owned the dominant tenement “Skygarden” and Perpetual owned the building known as “Glasshouse”.
57By 2006, Westfield owned Skygarden together with two other commercial developments “Imperial Arcade” and “Centrepoint”. Westfield wanted to redevelop all three of its properties and “to utilise for that redevelopment the right of way under Glasshouse so as to enable vehicular access from King Street.” (2007) 233 CLR 528, 531-2 [1], [7], [11]
58At trial, Brereton J declared that Westfield was entitled to make that use of the easement but his decision was reversed by the New South Wales Court of Appeal. Westfield went to the High Court seeking to have the determination of Brereton J reinstated (2007) 233 CLR 528, 533 [12]-[14].
59In dismissing the appeal against the Court of Appeal’s determination, their Honours concluded that the use being sought to be made of the easement exceeded what was authorised by the terms of the registered grant. They said:
“ We return to the terms of the Easement. The access is to go, pass and repass to and from Skygarden and across Glasshouse. The terms do not speak of going, passing and repassing to and from and across Skygarden, and across Glasshouse. The term ‘for all purposes’ encompasses all ends sought to be achieved by those utilising the Easement in accordance with its terms.” ((2007) 233 CLR 528, 537 [30])
60Crucially, the High Court approved criticisms by the Court of Appeal of the primary judge’s willingness:
“…to look for the intention or contemplation of the parties to the grant of the Easement outside what was manifested by the terms of the grant. Extensive evidence of that nature had been led by Westfield on affidavit with supporting documentation.” ((2007) 233 CLR 528, 538 [35])
61I set out in full the relevant paragraphs from the court’s determination:
“37However, in the course of oral argument in this Court it became apparent that what was engaged by the submissions respecting the use of extrinsic evidence of any of those descriptions, as an aid in construction of the terms of the grant, were more fundamental considerations. These concern the operation of the Torrens system of title by registration, with the maintenance of a publicly accessible register containing the terms of the dealings with land under that system. To put the matter shortly, rules of evidence assisting the construction of contracts inter partes, of the nature explained by authorities such as Codelfa Construction Pty Ltd v State Rail Authority of NSW, did not apply to the construction of the Easement.
38Recent decisions, including Halloran v Minister Administering National Parks and Wildlife Act 1974, Farah Constructions Pty Ltd v Say‑Dee Pty Ltd, and Black v Garnock, have stressed the importance in litigation respecting title to land under the Torrens system of the principle of indefeasibility expounded in particular by this Court in Breskvar v Wall.
39The importance this has for the construction of the terms in which easements are granted has been remarked by Gillard J in Riley v Penttila and by Everett J in Pearce v City of Hobart. The statement by McHugh J in Gallagher v Rainbow, that:
"[t]he principles of construction that have been adopted in respect of the grant of an easement at common law ... are equally applicable to the grant of an easement in respect of land under the Torrens system", is too widely expressed. The third party who inspects the Register cannot be expected, consistently with the scheme of the Torrens system, to look further for extrinsic material which might establish facts or circumstances existing at the time of the creation of the registered dealing and placing the third party (or any court later seized of a dispute) in the situation of the grantee.
40It is true that in Overland v Lenehan Griffith CJ admitted extrinsic evidence to show a misdescription of the boundaries of the land comprised in a certificate of title. This is a matter now dealt with in the RP Act by the provisions in Pt 15 (ss 136‑138) for the cancellation and correction of instruments. Subsequently, in Powell v Langdon Roper J accepted as applicable to the construction of a particular grant of a right of way (apparently over land under the RP Act) a statement by Sir George Jessel MR in Cannon v Villars. This was that the content of the bare grant of a right of way per se was to be ascertained by looking to the circumstances surrounding the execution of the instrument, including the nature of the surface over which the grant applied.
41The situation with which the Australian courts were concerned in the above cases bore little resemblance to that in the present case, where the evidence goes to the intentions and expectations of the parties to the Instrument respecting the development of an area in the central business district of Sydney.
42To some degree the attraction of "the common law approach to the construction of grants of easement" has been to counter arguments that a right of way may be used only for the purposes for which the way was used at the time of the grant. But to accept the proposition that the user under a registered easement may change with the nature of the dominant tenement, so long as the terms of the grant are sufficiently broad, does no violence to the principles of the Torrens system.
43Subsequent changes in circumstances may found an application under s 89 of the Conveyancing Act for modification or extinguishment. The conduct of the immediate parties to a dispute may found a personal equity of the kind considered in Mayer v Coe and accepted in Breskvar v Wall, and also may bear upon a claim for injunctive relief, as Kearney J indicated in Andriopoulos v Marshall. But this was not what was involved in the significance attached by the primary judge to the evidence of what may or may not have been in the contemplation of Jamino and Mastwood, or their affiliates and advisors, at or before the grant of the Easement in 1988. These matters were used to guide, if not control, the construction of what appeared on the Register.
44It may be accepted, in the absence of contrary argument, that evidence is admissible to make sense of that which the Register identifies by the terms or expressions found therein. An example would be the surveying terms and abbreviations which appear on the plan found in this case on the DP.
45But none of the foregoing supports the admission in this case of evidence to establish the intention or contemplation of the parties to the grant of the Easement.” ((2007) 233 CLR 528, [37]-[45])
62Mr Christophersen relied upon these remarks to exclude from consideration, as to the proper construction of the terms of the easement, the historical material adduced on behalf of the plaintiffs.
63Mr McNaught on behalf of Mr Yarak and his company referred to a dictum of Hodgson JA in the New South Wales Court of Appeal which he said was approved by the High Court, where his Honour said:
“…regard may be had to surrounding circumstances, including the physical circumstances of the dominant and servient tenements and the use actually being made of them at the time of the grant.” ([2006] NSWCA 337, [26])
64He said that the High Court approved the statement by Sir George Jessel MR in Cannon v Villars (1878) 8 Ch D 415, where it was said his Lordship said that the content of the grant of easement was to be ascertained by looking to the circumstances surrounding the execution of the instrument, including the nature of the surface over which the grant applied.
65No one, as I understand it, contended that regard could not be had to the nature of the land here in question. There is nothing to suggest that the nature of the land, in the narrow sense, has altered materially in the last 60 years. What plainly has been extensively modified over that time is the extent and the nature of the buildings on the Emerson allotment.
66What sets the Emerson as the dominant tenement owner and occupier apart from Mr Yarak and his company as the servient tenement owners and occupiers is that, according to Mr Yarak and his company, the Emerson’s entitlement is only to pass and repass over the easement.
67In closing submissions, Yarak’s counsel conceded that certain stopping to a de minimis extent would be permissible. The plaintiffs contended, however, that no loading or unloading might be carried out on the easement.
68Mr Christophersen, on behalf of the Emerson, relying on Bulstrode v Lambert [1953] 1 WLR 1064 (Upjohn J), said that in the present circumstances with the easement being a cul-de-sac Emerson and its licensees were entitled to stop vehicles on the easement for so long as needed to load or unload goods (Defendant’s Closing Submissions, [43]).
69The building permit referred to above might be thought to indicate that in 1963 the easement was not a dead end or a cul-de-sac, and that vehicles could enter the Emerson allotment and carry out loading and unloading operations within the Emerson allotment so as not to burden the Yarak allotment with such loading and unloading operations.
70This view of things might be thought to be supported by Planning Permit Condition 12 dating from Permit 87/415 quoted at [8] above. In my view, this is the sort of use of extrinsic material which the High Court in Westfield’s case disapproved.
71Mr Christophersen contended that material such as the 1964 Building Permit relied on by the plaintiffs was not such as would be available as part of the standard search procedure which a party acquiring the Emerson might be expected to undertake. Rather, they came to light only as a result of the “dragnet” subpoena served on the local council by the plaintiffs. He said that the approach of excluding material which was not part of the normal search process was supported by the remarks of Fryberg J, a member of the Queensland Court of Appeal, in Currumbin Investments Pty Ltd v Body Corp Mitchell Park Parkwood CTS [2012] QCA 9.
72His Honour gave the principal judgment in the court with Margaret McMurdo P and Fraser JA concurring. At [53], his Honour said:
“The High Court did not in Westfield attempt to define the circumstances in which extrinsic evidence could be taken into account in construing a registered instrument. We must take it, I think, that an important consideration in determining whether information or a document can be so used is whether the information or document was and remains publicly available to third parties without unreasonable effort, expense or delay. That consideration is helpful in the present case.” ([2012] QCA 9, [53])
73His Honour concluded that the evidence in dispute in the case before the court ought to be excluded:
“ In my judgment the disputed evidence should be disregarded in construing the grant of easement. It comprises information derived from documents on a file of the Gold Coast City Council and another of a firm of town planners. The documents are not publicly available and nothing in the freehold land register hints at their content. A third party viewing the register might expect that documents of this sort would once have existed, but would not know whether they were now available or held in some archive or destroyed. Some of the information appears to be based on inferences drawn by Currumbin's solicitor from the files. How the solicitor came by the documents is not disclosed in the evidence.” ([2012] QCA 9, [60])
74In my view, the historical evidence adduced on behalf of the plaintiffs is relevant in giving a general historical background to how this dispute arises. It is not, however, appropriate for consideration as to the true construction of the grant of easement (Evidence Act 2008, s136).
The easement
75In opening the case, Mr McNaught contended, and I did not understand Mr Christophersen to dissent from the view, that the form of easement creation effected by the 1963 plan and subdivision incorporating by reference the terms of the Twelfth Schedule to the Transfer of Land Act 1958 by way description of the easement of carriageway thereby created.
76In closing submissions, however, Mr Christophersen said that the words employed in the plan of subdivision were not apt to engage s72(3) of the Transfer of Land Act and, hence, did not incorporate the Twelfth Schedule by way of description of the easement of carriage.
77He referred to a judgment of Habersberger J in Mantec Thoroughbreds Pty Ltd v Batur [2009] VSC 351. His Honour was considering an allegation of a substantial obstruction of an easement of carriageway by a dam, by fences and a locked gate. His Honour considered that the Twelfth Schedule was not incorporated by virtue of s72(3) of the Transfer of Land Act in the matter before him because the plan of subdivision referred to a “way” rather than “carriageway”.
78His Honour heard evidence from the surveyor, who said that he used the two words interchangeably. Accordingly, the Twelfth Schedule was not directly imported. His Honour remarked:
“ Nevertheless, nothing seems to turn on whether or not s.72(3) and the Twelfth Schedule of the Transfer of Land Act applied, because the parties accepted that a ‘right of way’ would have a similar meaning to a ‘right of carriageway’.” ([2009] VSC 351 at [65])
79Likewise, in the present case, whilst both counsel ultimately agreed that the Twelfth Schedule was not directly imported as stating the scope of the relevant easement, the terms of the Twelfth Schedule were apt to be considered on the basis that they represent an established and approved description of what an easement of carriageway might be.
80In the present instance, the notation on the plan of subdivision referred to an easement “for a carriageway” not merely an easement of way (see [2] above).
81What then is the evidence as to Emerson and those for whom it may be responsible “stopping” on the easement?
82As previously noted, both parties made extensive video records of their dealings and movements on the easement in the laneway in recent years. The most dramatic incident referred to at [16] above occurred on 13 April 2022 (video 91). For whatever reason, whether because the limitation in the number of frames photographed or some artifact of recording or replay, the individuals involved are shown moving at several times normal pace. As to the nature of the intrusion, or alleged intrusion, on the easement the video shows a delivery vehicle stopping short of the easement in the laneway and a delivery man with a pallet jack moving kegs across the easement and pausing perhaps to open the roller door. The roller door is not operated by the use of a traditional metal key, rather staff members and delivery persons authorised by Emerson are provided with access to an “App” which may operate the roller door. Alternatively, a telephone number is posted on the sign adjacent to the roller door which allows communication with those “on duty” within (T252, L1-16 and [19] above).
83As the delivery man is seen approaching the roller door, an apparently enraged Mr Yarak appears from the rear of his residence and remonstrates. The delivery appears to have been aborted, that is it was not completed on the day.
84In another incident on 3 September 2021 (video 83), a skip bin is shown in the process of being placed on the easement. Mr Yarak appears, remonstrates, and requires the skip to be removed.
85Many of the incidents recorded on video entail vehicles stopped “short” of the easement in the laneway with items being loaded or unloaded across the easement. In my view, none of these incidents entail a trespass or other infringement of the rights of Mr Yarak’s company as owner of the servient tenement, or Mr Yarak’s interests as its occupier. This, and the incident involving the pallet jack, are instances of Emerson and its licensees using the easement to “pass and repass”, which is consistent with Emerson’s rights as holder of the dominant tenement and beneficiary of an easement of carriageway. These matters require consideration, however, relative to separate contentions made by the plaintiffs as to the use of the laneway.
86Video 63 shows a pallet being placed on the easement and being loaded from a truck parked in the laneway. Video 58 shows an event on 20 June 2022, which relevantly shows a vehicle parked partly on the easement and partly on the laneway.
87Mr Yarak gave evidence independently of the videos asserting the occurrence of similar events.
88As previously noted, Mr Christophersen for Emerson placed major reliance on the decision of Upjohn J, sitting as a judge in the High Court of Justice in England in Bulstrode v Lambert [1953] 1 WLR 1064 (Bulstrode’s case). This case examined the entitlements of an auction market having the advantage of an easement of carriageway in favour of the auction market over land sold to third parties by the then owner of both the servient and dominant tenements, with the easement being retained for the benefit of the auction market in a conveyance made in 1944.
89In the proceeding before the court, the plaintiff (the owner of the auction market) claimed an entitlement to bring large vans down the easement to the cul-de-sac to load and unload them and pass furniture through the gateway onto the auction market premises. Upjohn J rejected a contention that since the easement had not been used by the auction market for a period of 10 years, it was precluded thereafter from availing of it for loading purposes. [1953] 1 WLR 1064, 1068
90His Lordship was pressed with an argument as to construction of the easement, remarking:
“As a matter of construction it is submitted that when one looks at all the circumstances, the nature of the locus in quo, the nature of the terminus ad quem, and the purpose for which the yard is used, one finds that there is an easement for the passage of persons only and not for the passage of goods. It is pointed out that the main means of access to the auction mart is through the other yard and not through this yard; the door into the mart is a door only some 3 ft. 6 ins. wide; and, finally, there is not a reservation for the purpose of obtaining access to business premises but merely to the premises described as an auction mart.” (Ibid)
91His Lordship noted that loading and unloading operations might take “half an hour to an hour or more”. The servient tenement owner contended that this went beyond “passing or repassing” [1953] 1 WLR 1064, 1070.
92His Lordship rejected the contention, noting that the easement of way was a dead end and the object of providing access to the auction mart for vans could not be achieved unless there were implied entitlements to load and unload [1953] 1 WLR 1064, 1071.
93His Lordship reached this conclusion by virtue of an historical analysis of events surrounding the conveyance which reserved the easement, remarking:
“ It seems to me that the right of coming upon this land in order to get to the auction mart is virtually useless to the plaintiff, unless he can unload his vehicles there, and therefore he must have the right to keep his vehicles there while he unloads and loads them, and I think that the principle which I have just read is applicable here.” (Ibid)
94Resort to an historical analysis of transactions in the present case might be regarded as pointing in the opposite direction.
95Mr McNaught contends that the sort of conclusion reached by Upjohn J in Bulstrode’s case ought not be reached here because as at the time of creation of the easement it was not a “dead end” or “cul-de-sac”, rather it gave entrance to the rear of what was then the Market Hotel premises with substantial open ground on which unloading might occur. Yet, for reasons already given, I have held that the evidence leading to this conclusion was not admissible as to the true construction of the scope of the easement.
96Mr Christophersen would have it that, as the Yaraks wish the easement to be construed, it could be regarded as “useless” for the same reasons explained by Upjohn J in Bulstrode’s case.
97Mr McNaught, however, would say that Emerson and its predecessor’s, entitlement are in this respect the authors of their own wrong by rendering the easement useless by building up and covering the structure the entirety of the Emerson allotment.
98In the Westfield case, the High Court in the course of the passage quoted above observed “the user under a registered easement may change with the nature of the dominant tenement, so long as the terms of the grant are sufficiently broad…” (2007) 233 CLR 528, 540 [42].
99Is the grant of an easement of way sufficiently broad to encompass a right to load or unload?
100In London and Suburban Land and Building Co (Holdings) Ltd v Carey (1991) 62 P&CR 480, Millett J (as his Lordship then was) rejected a contention that in the circumstances before the court the holder of a carriageway easement was entitled to halt its vehicles on the easement for the purpose of loading and unloading. His Lordship distinguished Bulstrode’s case because, in his view, the layout of the premises in the case before him contrasted sharply with Bulstrode’s case because, in the case before him:
“…the servient land[‘s] accessway, abuts on a large open forecourt belonging to the defendants [the dominant tenement owner] on which vehicles can park or halt in order to deliver or collect goods. There is, as far as I can see from the configuration of the land, no necessity for the defendant’s vehicles to halt on the accessway in order to deliver goods or collect them rather than on the defendant’s own land.” ((1991) 62 P & CR 480, 483)
101A similar approach to the one adopted by Upjohn J in Bulstrode’s case is evident in Australia in Elliott v Renner [1923] St R Qd 172. The Supreme Court of Queensland considered a dispute relative to a right of way granted as part of a sublease. The sub-lessor sought a determination that the right of way authorised its use for passing and repassing but not for any vehicles to halt. According to the trial, Shand J said:
“ Counsel for the plaintiff (Mr. Graham) conceded that the right-of-way being a perfectly general right-of-way over ground suitable for vehicular traffic authorises the use of vehicles of any description which can reasonably be used for the purposes of the defendant's business; but he contended that in using the right-of-way no person is entitled to leave a vehicle standing on the ground over which the right-of-way is exercisable.” ([1923] St R Qd 172, 176)
102In rejecting this contention, his Honour said:
“I think the grant of a right-of-way to premises used, or intended to be used, for the purposes of a pastrycook's business would include the right of bringing up vehicles to the premises and keeping them standing outside the premises whilst they were being loaded or unloaded, or otherwise employed for reasonable business purposes.” (Ibid)
103His Honour’s judgment was appealed to the Full Court (McCawley CJ, Lukin and Macnaughton JJ).
104In dismissing the appeal, the Chief Justice said:
“ The dominant tenement is of small area (22ft. by 61ft.). The sublessor was aware that the sublessee intended to build upon this land and otherwise use it for the purpose of a pastrycook's business. It would, of course, materially diminish the small area available if the sublessee required to turn his vehicles upon the demised land. On the other hand, the land of the lessor being at the time vacant, no immediate inconvenience would be caused to him from any turning on his land; and should he subsequently use the land for business purposes it would be natural that he should leave a like area for the purpose of convenient turning by the occupiers of buildings erected for those business purposes.” ([1923] St R Qd 172, 181)
105Lukin and Macnaughton JJ concurred with the Chief Justice.
106Bulstrode’s case has been repeatedly cited in Australia with evident approval or, at any rate, without any evident disapproval. Notably, in Gallagher v Rainbow & Ors (1994) 179 CLR 624, 640, McHugh J said:
“In construing the grant of an easement - whether at common law or under the Torrens system – ‘the court will consider (1) the locus in quo over which the way is granted; (2) the nature of the terminus ad quem; and (3) the purpose for which the way is to be used’.”
107This is a quotation from the 15th edition of Gale on Easements. His Honour footnotes a reference to Bulstrode’s case.
108A decision of the Full Court of the Supreme Court of Queensland in S.S. & M. Ceramics Pty Ltd v Kin [1996] 2 Qd R 540 (S.S. & M. Ceramics’ case), the Queensland Court of Appeal consisting of Macrossan CJ, McPherson JA and Ambrose J, considered once again the question of whether a grant of a right of way extended merely to a right to “pass and repass” or carried with it a right to stop vehicles to load and unload. S.S. & M. Ceramics was the owner of the servient tenement and the respondents, Mr Kin and others, owned the dominant tenement on which they operated a shop selling fruit and vegetables. S.S. & M. Ceramics objected to the parking of vehicles on the easement area during the loading and unloading of vehicles.
109The trial judge dismissed proceedings to restrain parking on the easement, concluding that where an easement was granted giving a right to pass and repass, then unless there was some special feature of the grant excluding the possibility there was carried with it an implied right to park for loading and unloading.
110Counsel for the fruit and vegetable shop owner relied on two English cases: Bulstrode’s case and McIlwraith v Grady [1968] 1 QB 468.
111Macrossan CJ, in deciding that the appeal should be allowed and the decision below reversed, said of the English authorities:
“ The emphasis of these two cases is upon the necessary enquiry into what was in the contemplation of the parties at the time of the grant. Whenever it is to be suggested that there is any extension of the right as it would be conveyed by the literal terms of the grant, this is the question that will arise.
The implication for which the respondents [the fruit and vegetable shop owners] contend in the present case does not arise under the circumstances as they existed in 1955 and further it is not shown that there were then any plans in the contemplation of the parties for building over the vacant area at the rear of the dominant tenement. When the terms of the grant were being drafted it would have been easy to include specifically the right to stop for the purpose of loading and unloading if it had been intended to cover that situation. Instead, the parties chose to make the grant in terms of a limited and strictly defined purpose, namely to pass and repass.” ([1996] 2 Qd R 540, 545)
112McPherson J, concurring with the Chief Justice, if determination of the appeal should be allowed said:
“The extent of the right [bestowed by the easement] therefore falls to be determined in accordance with the physical facts and circumstances existing at the time of the grant in 1955. At that time the dominant tenement was so built upon as to leave space for loading and unloading vehicles on it without the need to stop, stand or park on the servient tenement. It would therefore not have been necessary at all, or even reasonably necessary, to stop on the easement area in order to exercise the right of passing and repassing along the easement area. The case may, to that extent, fairly be compared with one in which a relatively confined right of way leads through the large area of a dominant tenement which is wholly or partly vacant. In such a case it would not be a reasonable exercise of the right to pass and repass to insist on stopping, standing or parking on the easement area when it would be equally convenient to do so on the dominant land. In such circumstances, it is difficult to see why the servient owner should have to submit to the exercise of rights over his land which he has never expressly granted and which were not plainly in contemplation at the time of the grant.” ([1996] 2 Qd R 540, 547-8)
113Ambrose J dissented, remarking:
“Having regard to the shape and size of the easement in issue and the location of the 163 m² cul de sac at its end adjacent to the rear boundary of the dominant tenement, it is difficult to see what inconvenience to or interference with the use of the servient tenement the exercise of a right to load and unload upon it would cause.” ([1996] 2 Qd R 540, 555-6)
114He said:
“ Even if in fact prior to 1955 the practice had been for some vehicles to pull on to the dominant tenement or partly on to it from land within the boundaries of the easement upon the servient tenement when ultimately granted, for the purpose of loading and unloading goods, that would be no basis in my view for so construing the terms of the easement on the facts of this case as to deprive the occupier of the dominant tenement of the ancillary right to load and unload vehicles while they were stationary on the easement if the constraints of available space from time to time so required.” ([1996] 2 Qd R 540, 555)
115S.S. & M. Ceramics’ case therefore might be thought to display a striking similarity to the present case.
116Interestingly, McPherson JA remarked:
“I realise that this conclusion [excluding a right to load and unload as being part of the easement] involves an investigation of conditions that prevailed in the past, and which it may not always be possible to elucidate many years after the event. To that extent it tends to impair the underlying principle of the Torrens system, which sets out to maintain the register as the sole repository of parties' rights and duties.” ([1996] 2 Qd R 540, 548)
117Similar issues came before Atkinson J in Hoy v Allerton & Anor [2001] QSC 440 (Hoy’s case). Her Honour noted the passage from the judgment of McPherson JA in S.S. & M. Ceramics, remarking at [23]:
“However in the case of easements, there is a recognised gloss on that principle. Where it is suggested that the rights conveyed by an easement are greater that [sic] would be conveyed by the literal terms of the grant of easement, then it may be necessary to consider what was in the contemplation of the parties at the time of the grant.” ([2001] QSC 440, [23])
118Her Honour then considered the facts of both Bulstrode’s case and S.S. & M. Ceramics, but concluded, however, at [25]:
“In the present case, an examination of the facts and circumstances which existed at the time of the grant does not, however, assist the owners of the dominant tenement, Mr and Mrs Hoy, in this case to expand the grant beyond the words used.” (Ibid, [25])
119Both Hoy’s case and S.S. & M. Ceramics predated the Westfield case. The High Court seems to have repudiated the “exception”, which Atkinson J and McPherson JA suggested, to the general principle that the scope of proprietary rights in Torrens system land was to be judged solely by reference to the material on the register.
120In the present case, were it permissible to consider the historical material contrary to the view which I have accepted, the outcome would be similar to the one reached by the Queensland Court of Appeal in S.S. & M. Ceramics, that is, that since there was no necessity for a right to load or unload to be implied in the easement at the time of its creation in 1963, because of the open backyard at the rear of the Market Hotel, no such right may now be implied. However, for the reasons already given, that historical analysis must be regarded as excluded by what the High Court has held in the Westfield case.
121In the present case, “a necessity” exists, at least as at present, to the same extent as it did in Bulstrode’s case, but only as a result of events since the creation of the easement initiated by Emerson’s predecessors in title.
122The High Court authority in Westfield’s case establishes that the layout of the land viz the dominant and servient tenements is a matter proper for consideration as to the true or proper construction of the instrument creating the easement. Granted, as their Honours in Westfield’s case said, the operative form of the easement may vary with changes to the use of the dominant tenement, no change may occur which takes the scope of the easement beyond the express words used in the creation.
123Bulstrode’s case seemed to accept that, as a matter of language, a right to pass and repass may, in certain circumstances, extend by implementation to a right to load and unload. If this is so, as a matter of language, then the change in the use of the dominant tenement viz the Emerson allotment from partially open air to 100 per cent site coverage may be accommodated within the concept of an easement of carriageway and therefore the language of the instrument of creation.
124I reach this conclusion with great hesitation troubled by the thought that acceptance of this reasoning creates difficulties and anomalies. Yet a conclusion favouring the plaintiff would require resorting to the very sort of historical analysis which I understand to be disapproved both by the Westfield case and the Currumbin case.
125It follows that the plaintiffs’ case, insofar as it contends that there has been an infringement of the right of the company as owner and Mr Yarak as occupier of the Yarak allotment by purported exercise of rights under the easement, must fail.
Trespass to other parts of Yarak’s allotment
126As noted above, the plaintiffs allege not merely that their rights have been infringed by purported use of the Yarak allotment affected by the easement but also by way of trespass to other parts of the Yarak allotment. According to paragraph 6(c) of the Statement of Claim, Emerson “parks vehicles…on other parts and areas of the [Yarak allotment] which is not the subject of the Easement of Way…”.
127Mr McNaught referred for instance to video 71, which he said showed “individuals” smoking in the backyard. Video 58 shot 20 June 2022, shows a car parked in the backyard of the Yarak allotment for two hours with a second vehicle parked partly on the easement.
128Mr Sutton, in cross-examination, explained this video and some other similar ones as involving customers of Emerson who hired the venue for private functions and were engaged in either the “bump in” before the event or the “bump out” afterwards. The cleaner, he said, proved ultimately unsatisfactory and was terminated. He denied that these persons were authorised by Emerson to engage in this sort of trespassory conduct (T277-81).
129Mr Christophersen relied on passages from Balkin & Davis Law of Torts. He took me first to the passages where the learned authors drew the traditional and well-accepted distinction between an employer or principal’s potential by vicarious liability for an employee on the one hand and an independent contractor on the other.
130At paragraph 26.27, page 887, the authors state that an employer is liable for the actions of an independent contractor only if the employer specifically authorised the tort, the tort is one of “strict liability” or it could be shown that the wrongful act and the damage resulted from a failure to take reasonable care on the employer’s part. This stands in contrast from the rule as to employees, where it is sufficient to render an employer liable for the employee’s negligent act to show that the act was carried out “in the course of employment”.
131At paragraph 26.28, however, the authors continue, stating:
“One who instigates or procures another to commit a tort is deemed to have committed the tort personally. It matters not whether that other was employee, independent contractor or agent, human or otherwise.”
132Mr Christophersen referred specifically to a dictum of Mason J (as he then was) in Stoneman v Lyons & Ors (1975) 133 CLR 550, 573-4:
“…the act of an independent contractor does not become the direct act of the defendant unless he orders to be done the act which constitutes the trespass, some act which comprises that act or some act which leads by physical necessity to the trespass.”
Likewise Mr Christophersen cited Day v Ocean Beach Hotel Shellharbour Pty Ltd (2013) 85 NSWLR 335 where the New South Wales Court of Appeal held a hotel company not to be liable for the unauthorised means adopted by its independent contractor security guard to remove a customer from the premises.
133Inferentially, Mr Christophersen contended that the “customers” attending for the private function should be regarded as covered by this principle. The cleaner, it would seem, would be properly characterised as an independent contractor.
134Neither counsel referred me to any authorities dealing specifically with the liability of a licensee for the actions of customers of the relevant licenced premises.
135In the absence of any such authority, it would seem that Emerson would be responsible for the actions of its customers or independent contractors if, and only if, it be proven that it authorised those actions. There is no affirmative evidence to that effect and Mr Sutton’s evidence is to the contrary.
136The plaintiffs’ case fails insofar as it seeks to render Emerson responsible for these and similar acts of third parties.
137As previously observed, the easement area is, to all appearances, simply a continuation of the public laneway. There is no signage or line painted to indicate that it is private property. Further, the plaintiffs’ land, being the backyard of their allotment, is not the subject of any delineation or sign showing it as private property or prohibiting parking thereon.
Private nuisance
138The plaintiffs complain not merely of Emerson’s use or purported use of the easement but also of Emerson’s use of the laneway for deliveries and collections. As previously noted, at since least the present dispute commenced, the directive given to delivery drivers is as per a notice adjacent to the roller door quoted at [19] above, requiring the delivery vehicles to stop short at least 5 metres back from the roller door.
139Mr Sutton’s evidence was that whilst he was involved in procurement and therefore arranging for deliveries to the Emerson, he gave similar directions to the suppliers for relay to their delivery drivers. If this mode of delivery be tortious, there is no question that Emerson procured or directed the commission of the torts and is therefore liable for their commission in accordance with the principles discussed above.
140Mr McNaught observed that there are two parking restriction signs in the laneway. The photographs at 271 and following of the Court Book and observations on the view support his contention. The signs are without written text and are in the form of a “S” within a circle with a transverse line running across the letter. Mr McNaught said that this sign engaged Regulation 167 of the Road Safety Road Rules 2017, which entails a depiction of the form of sign to be found in the laneway described as “no stopping sign (for a length of road)”. The regulation states “[a] driver must not stop on a length of road or in an area to which a no stopping sign applies. Penalty: 3 penalty units.”
141This regulatory regime, he said, stood in contrast to no parking zones, which were dealt with in Regulation 168 which included an allowance for a driver to stop in a no parking zone for the purpose of dropping off or picking up passengers or goods, does not leave the vehicle unattended, and completes the process “as soon as possible”, subject to restrictions depending on circumstances of two to five minutes. The effect, said Mr McNaught, was that there was no entitlement to stop in the laneway even to the de minimis level.
142Next, he referred and relied on a decision of Sholl J in Walsh v Ervin [1952] VLR 361 (Walsh v Ervin). The case before his Honour was a dispute between two farmers whose neighbouring properties were located in north-western Victoria. The plaintiff, as owner of a freehold farm property adjoining a public highway, claimed to be entitled to “free and uninterrupted access to the highway from any point on his land contiguous with the highway, and from the highway to any point on his land contiguous therewith.” (Ibid, 362)
143The plaintiff contended that this was a private right which he enjoyed as the owner of land adjoining the highway. He said further that this was a private right not to be confused with the public right to use the highway (Ibid, 363).
144The plaintiff alleged that in the years 1946-1947 he was deprived of the benefit of use of a gate on his property because the defendant had “ploughed up” the adjacent highway and allowed it to remain ploughed up so as to prevent the plaintiff’s motor vehicle access. By the time the matter came on for trial the obstructions had been removed and, in his Honour’s view, there was no occasion to grant either an injunction or a declaration of right because there was no threat of repetition (Ibid, 372).
145As to the vindication of the claimed private right, his Honour said:
“…the plaintiff in this case can obtain at least nominal damages if there has been something sufficiently substantial to constitute an interference with his right. In my opinion, the prevention of the possibility of access for motor vehicles for some months does amount to such an interference. It was a substantial diminution of the effective content of the plaintiff's right, even though…there is no evidence that the plaintiff wanted to use the gate…for access by motor vehicle except on the one occasion. Thus, even if there had been no evidence that the plaintiff ever wanted so to use it during the period of the obstruction by ploughing, I think there would have been an infringement of his right, entitling him to nominal damages.” (Ibid, 364)
146His Honour considered there was power to award exemplary damages but he saw fit not to exercise it. The plaintiff’s damages entitlement, his Honour said, could also be characterised as a right to general damages. He awarded damages of £4 (ibid, 365).
147Next, his Honour considered a claim for damages for a public nuisance. His Honour considered whether a claim for damage could be made where the plaintiff had “not proved any actual pecuniary loss, ascertained, or capable of being precisely ascertained, in money.” (Ibid)
148His Honour then considered the authorities on this matter which he said had been “the subject of many cases, and of some uncertainty, for more than four centuries.” (Ibid, 367)
149His Honour commenced a consideration of authorities, the earliest of which dated from 1536. On the basis of these authorities, he said:
“As the general principle is usually stated, an individual cannot sue alone for relief in respect of a nuisance to a public highway unless he has sustained some particular damage, in the sense of some substantial injury, direct and not merely consequential, beyond that suffered by the public generally.” (Ibid, 368)
150This could not justify, he said, the award of nominal damages.
151Since the case pressed by Mr McNaught on this occasion is one of private nuisance only, I need not pursue an analysis of his Honour’s judgment insofar as it deals with an individual plaintiff’s right to recover damages for public nuisance.
152To turn for a moment to the present case, the evidence shows that unless restrained Emerson proposes to continue on its present course, and so the grant of an injunction or a declaration is a matter requiring consideration, in contrast to the situation in Walsh v Ervin.
153Mr Christophersen, for the Emerson, said that the plaintiffs failed to prove that they had suffered any loss or damage by reason of the alleged blockages. He referred to McFadzean & Ors v Construction, Forestry, Mining and Energy Union & Ors (2007) 20 VR 250, [125]-[134].
154That case arose out of a conflict over logging of forests in the Otway Ranges. A number of the anti-logging protesters sued the defendant union which “picketed” their protest apparently blocking access roads whilst advising the protesters to leave the forest area. The protesters’ proceeding led to the award of damages to some of their number for assault and the intentional infliction of emotional distress but was otherwise dismissed.
155The appeal was unsuccessful. At [125], the Court (Warren CJ, Nettle and Redlich JJA) said:
“ Of course, since every member of the public is entitled to pass and repass along a public road, the rights of each member of the public so to pass are subject to such obstacles, congestion and inconvenience as may be caused by the exercise by other members of the public of their rights to pass and repass along the road. Additionally, each member of the public has the right to reasonable use of the road for such other purposes as it is usual to use a highway, such as stopping on lawful occasions for the purpose of taking up and putting down passengers and effecting repairs. The right of each member of the public to pass and repass is accordingly further diminished. There are also many inconveniences to public use of the highway for which there is no legal remedy. Construction or renovation of buildings abutting the highway and the loading or unloading of vehicles are examples. But unreasonable or excessive use of a public road is a nuisance irrespective of any wrongful guilty intent and an assembly of persons on a public road is unreasonable and excessive if it blocks a considerable part of the surface.” ((2007) 20 VR 250, 282, [125])
156According to Mr Christophersen, Mr Yarak’s evidence was that he refrains from approaching vehicles which obstruct his access. According to Mr Christophersen (Defendant’s Closing Submissions, [62]):
“ The consequence is that, if Mr Yarak finds that he is obstructed, but has not taken the simplest and most obvious course to ask the driver to move or let him pass, it is on Mr Yarak’s own shoulders and he has suffered no damage or nuisance.”
157In the following paragraph, Mr Christophersen noted the display adjacent to the roller door of a telephone number which could secure the attendance of a “duty” manager or other person from within the Emerson to resolve any conflict.
158In the present instance, the regulation as to “no stopping” signs appears to be absolute and to admit of no exceptions. The plaintiffs’ claim here, however, as formulated by Mr McNaught, is for private nuisance not public nuisance. The obstructions depicted in the evidence are transitory and seem to be agreed by all that they are concentrated on Wednesday, which is the big day for deliveries (T257, L14-17). So long as Emerson and its invitees and licensees are willing to co-operate with Mr Yarak, his family and invitees to grant access and egress on request, parking in the lane would not be actionable as a private nuisance (Trewin v Felton (2007) 13 BPR 24,579 as per Brereton J).
159They scarcely rate in comparison to a 24-hour a day obstruction lasting for months and years, as was the case in Walsh v Ervin.
160Mr Yarak identified only one specific example of his being materially inconvenienced relative to the filling of a prescription (T86, L4-5).
161Should an injunction go with respect to the blockages of the lane? It is clear that, unless restrained, Emerson will continue to seek to receive its major deliveries via the laneway. Whether the vehicles making those deliveries seek to drive right up to the roller door or stop short at 5 metres, as the present direction would have them do, the laneway will be blocked. It is only the smallest of sedans that can be accommodated completely on the “pocket handkerchief” of the easement. As Dr Spry in his work Equitable Remedies notes:
“ In all cases it is a matter of discretion whether an injunction will or will not be granted; but the manner of exercise of that discretion depends on the precise nature of the particular rights that it is sought to protect and on all the other material circumstances.” (Equitable Remedies, 9th edition, 405)
162On the following page, Dr Spry refers to a dictum from Sir Raymond Evershed MR (as he then was) in Pride of Derby and Derbyshire Angling Association Ld & Anor v British Celanese Ld & Ors [1953] 1 Ch 149, 181, where his Lordship said:
“It is, I think, well settled that if A proves that his proprietary rights are being wrongfully interfered with by B, and that B intends to continue his wrong, then A is prima facie entitled to an injunction, and he will be deprived of that remedy only if special circumstances exist, including the circumstance that damages are an adequate remedy for the wrong that he has suffered.”
163Dr Spry then proceeds to refer to a number of discretionary considerations such as laches, hardship, acquiescence, the absence of clean hands, and so forth (Op cit, 406-7). As to the subject of “hardship”, albeit in the context of the remedy of specific performance, Dr Spry deals with this as a discretionary ground for refusing specific equitable relief (Op cit, 202 et seq.).
164In the present case, to grant injunctive relief based upon blockages in the laneway would effectively deprive Emerson of the benefit of its easement of carriageway. The “no stopping” regime in the laneway is established by public law with the enforcement of parking regulation traditionally undertaken by local government. In those circumstances, assuming without deciding that as a matter of substance, and any other discretionary considerations to one side, it would be appropriate to grant an injunction relative to blockages of the laneway for the benefit of the plaintiff, I would decline to do so, based upon the hardship considerations just described and the enforcement of the parking restrictions being the responsibility of the local municipality.
Washing operations
165The plaintiffs complain of Emerson’s washing items on the easement and also conducting washing operations on the Emerson allotment and allowing the water to wash out from the roller door onto the easement and therefore onto the plaintiffs’ property. Mr Yarak complained that the stones or bricks on the easement had somehow been lifting as a result of these processes (T84-85). The videos did not, as I recollect, show Emerson employees or agents carrying out washing on the easement. They did show water swishing out through the roller door.
166Mr Christophersen contended that since the easement appurtenant to the Emerson allotment included a drainage entitlement, no complaint could be made of these matters. There is no equivalent provision in the Transfer of Land Act to the Twelfth Schedule which sets out the standard terms of a carriageway easement relative to a drainage easement, nor was there any evidence as to what, according to conveyancing practice, such a drainage easement might entail. More pertinently, however, claims based on alleged unreasonable flows of water from one person’s property onto another are within the sole jurisdiction of the Victorian Civil and Administrative Tribunal under Part 2 of the Water Act 1989: see Water Act 1989 ss16 and 19(10).
The counterclaim
167The prayer for relief in Emerson’s counterclaim seeks:
“A mandatory permanent injunction restraining the Second Plaintiff from interfering with the Defendant's use and enjoyment of its land, including a restraint against the Second Plaintiff from approaching or talking to the Defendant’s directors, agents, staff or contractors in or around the rear of the Second Plaintiff's property”. (Defence and Counterclaim, [A])
168Beyond references to interference with the defendant’s use and enjoyment of its land, Mr Christophersen did not otherwise seek to characterise the cause of action upon which his client relied; nor did he cite any authorities in support of the cause of action relied on.
169Perhaps more importantly, a major strand of Emerson’s defence was that in so far as Mr Yarak complained about being “bottled up” in his premises and being blocked from vehicular access and egress, he did not avail of the obvious remedy of asking the drivers of the offending vehicles to move them to clear the way for him to enter or leave the Yarak allotment. Grant of the relief sought in the counterclaim would preclude him from availing himself of that obvious practical remedy.
170The determinations which I have made as to the plaintiffs’ causes of action would suggest that the intemperate interventions of Mr Yarak depicted on many of the videos which were put into evidence were not legally justified. Most of the videos were without soundtrack, and the terms and tone of what Mr Yarak is depicted as having been saying can only be inferred from his body language. That body language would suggest that his speech was highly intemperate. On a couple of occasions, videos from mobile phones viewing the same events from different locations included audio tracks which were entirely consistent with the inferences which might be drawn from Mr Yarak’s body language. Mr Christophersen said that Mr Yarak’s words as recorded by the mobile phones would be found to include obscenities and threats along the lines of “I know where you live”. Mr Yarak denied these things, but, as Mr Christophersen noted at paragraph 71 of his closing submissions, Mr Yarak made some concessions in that regard, such as “[l]ook, what I (indistinct) blood pressure go very high, and you feel what you feel” (T110, L30-31), and agreeing that sometimes “I see black” (T106, L28-29).
171Emerson received complaints as to the scenes created by Mr Yarak from Carlton & United Breweries (see [20] above). Deliveries were aborted by these outbursts (see [25] above). Again, following the incident in April 2021 which was captured with mobile phone audio, a lady identified as “Amelia” was said to have resigned from Emerson’s employ (see [18] above). As to this last matter, no doubt many factors enter into a decision of an employee to resign from his or her employment. In the absence of evidence from “Amelia”, I am not satisfied that her departure can necessarily be attributed to Mr Yarak’s outbursts.
172I can only deplore what Mr Yarak has done. It is damaging to all persons involved, including himself. Nevertheless, for the reasons already given, it would in my view be a hardship and inappropriate to make orders which would preclude Mr Yarak from seeking to forward his legitimate interest in securing timely access and egress from the Yarak allotment by representations to those associated with Emerson as to their use of the laneway and easement.
Disposition
173The claim, in so far as it seeks injunctive relief, fails. As explained above, there is an entitlement to very modest damages in accordance with the principles stated by Sholl J in Walsh v Ervin. I would convert the modest award which his Honour made in 1952 to $500, which might be regarded as an equivalent in modern currency. Again, as I understand his Honour’s reasoning, these damages are common law damages not made in substitution for an injunction under s38 of the Supreme Court Act 1986. For reasons explained, since the nuisance complained of was entirely in the past and was not the subject of any threat of continuation, no issue as to equitable relief arose in the case before his Honour. The plaintiffs’ claim should otherwise be dismissed.
174The counterclaim is dismissed.
175Both parties in their openings sought to supplement their pleading prayers for relief with a request for declaratory relief instead, or preferably, additional to injunctive relief. For the reasons given neither declaration should be made.
Costs
176I have heard no submissions on the question of costs, and so I will reserve them.
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