Dudley v Ainsworth [2021] NSWSC 1478

Supreme Court New South Wales

Medium Neutral Citation: Dudley v Ainsworth [2021] NSWSC 1478 Hearing dates: 8-9 November 2021 Date of orders: 17 November 2021 Decision date: 17 November 2021 Jurisdiction: Equity Before: Darke J Decision: Fencing and planting held to constitute nuisance by obstructing plaintiff's rights under easement. Injunctive relief to be granted. Catchwords: LAND LAW – easements – right of carriageway – actionable nuisance – plaintiff's land has the benefit of a right of carriageway 48.645m long over the defendants' land – right of carriageway used as a driveway to access public road – defendants constructed fence along the right of carriageway with 7.4m gap to permit plaintiff access to his land – plaintiff constructed large shed north of the gap and has a barn south-west of the easement area – plaintiff owns numerous vehicles including 11m long bus – whether fence with only 7.4m gap obstructs the plaintiff's enjoyment of rights under the easement – held that fencing impedes or restricts ability of dominant owner to move large vehicles from easement to large shed and from easement to south-western area of the land – real substantial interference with enjoyment of rights – held appropriate to grant injunctive relief to remedy continuation of interference Legislation Cited: Conveyancing Act 1919 (NSW), ss 88H, 89(1)(c), 181A, Schedule 8 Part 1 Cases Cited: Coffill v Lagudi Holdings Pty Ltd (2016) 18 BPR 36,483; [2016] NSWSC 1764 Hare v van Brugge (2013) 84 NSWLR 41; [2013] NSWCA 74 Keefe v Amor (1965) 1 QB 334 Panfili v Lawless [2010] NSWSC 79 Powell v Langdon (1944) 45 SR (NSW) 136 Prospect County Council v Cross (1990) 21 NSWLR 601 Sertari Pty Ltd v Nirimba Developments Pty Ltd (2008) NSW ConvR 56-200; [2007] NSWCA 324 Treweeke v 36 Wolseley Road Pty Ltd (1973) 128 CLR 274 Trewin v Felton (2007) 13 BPR 24,579; [2007] NSWSC 851 Westfield Management Ltd v Perpetual Trustee Company Ltd (2007) 233 CLR 528; [2007] HCA 45 Category: Principal judgment Parties: Michael Raymond Dudley (Plaintiff/Cross-Defendant) David Ainsworth (First Defendant/First Cross-Claimant) Kylie Leanne Ainsworth (Second Defendant/Second Cross-Claimant) Representation: Counsel: Mr A M Coombes (Plaintiff/Cross-Defendant) Mr M Bennett (Defendants/Cross-Claimants)