Walker v Espie [2003] NSWSC 559

New South Wales Supreme Court

CITATION : Walker v Espie [2003] NSWSC 559 HEARING DATE(S) : 18 June 2003 JUDGMENT DATE : 18 June 2003 JURISDICTION: Equity JUDGMENT OF : Campbell J DECISION : Quia timet injunction refused

CATCHWORDS : REAL PROPERTY - easements - gate on line separating land of dominant owner from site of easement - whether an actionable interference with rights of dominant owner to use easement - quia timet injunction sought to restrain interference with easement - effect of dominant owners having kept themselves poorly informed about plans of servient owners for the gate, and having not ascertained whether potential problems which they foresaw could be overcome Anderson v Pender [2002] NSWSC 1005 Butler v Muddle (1995) 6 BPR 13,984 CASES CITED : Dunell v Phillips (1982) 2 BPR 9,517 Finlayson v Campbell (1997) 8 BPR 15,703 Pettey v Parsons [1914] 2 Ch 653 Powell v Langdon (1944) 45 SR (NSW) 136 PARTIES : Clive Cecil Walker & Elizabeth Mary Ellis - Plaintiffs Nathan John Espie - Defendant FILE NUMBER(S) : SC 2701/03 COUNSEL : T Hancock - Plaintiffs P Maiden - Defendant SOLICITORS : Ellis & Baxter - Plaintiffs Murwillumbah Lawyers Pty - Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION EQUITY LIST

CAMPBELL J

WEDNESDAY 18 JUNE 2003

2701/03 CLIVE CECIL WALKER & ANOR v NATHAN JOHN ESPIE JUDGMENT – Ex Tempore 1 HIS HONOUR: This is a final hearing of an application for an injunction to restrain the use of an easement by the erection of a gate across part of the boundary of the site of an easement. 2 The plaintiffs are the registered proprietors of land which lies on the corner of Old Ferry Road Murwillumbah and Tumbulgum Road. That land is a rectangular block which is orientated in approximately an east/west direction. Even though it lies at the corner of Tumbulgum Road and Old Ferry Road, it does not have vehicular access from either of those roads. The frontage that is on Tumbulgum Road is the southern side of the plaintiffs' land. The plaintiffs' land near that frontage falls away extremely steeply - it is retained by a retaining wall, and there is only a footway which goes from the plaintiff's property to Tumbulgum Road. The frontage near Old Ferry Road is the eastern side of the plaintiffs' land. The land around that frontage falls away fairly steeply. There is a small council reserve of some sort in between the easternmost boundary of the plaintiff's property and Old Ferry Road. Because of these matters of both topography and title, access to the plaintiff's land is derived from a right of way over the land of the defendant. 3 The defendant's land is a rectangular block which is orientated in approximately a north/south direction. The southern third or thereabouts of the defendant's land lies immediately to the west of the plaintiffs' land. The right of way to which the plaintiffs are entitled is one which is 12 feet wide and traverses approximately two thirds of the length of the eastern boundary of the defendant's lot. 4 By going along that right of way in a northerly direction from the plaintiff's property, one can reach Sunnyside Lane. This is a small dead-end street which branches off Tumbulgum Road, then curves around to go in roughly an easterly direction. It is by going along Sunnyside Lane to its end, and then turning into the right of way, that the plaintiffs have access to their property. They enter their property by going through a space, through which a car can easily drive, which lies to the north of the spot where a fence constructed on the boundary between the land of the plaintiff and the defendant terminates. 5 The easement which the plaintiffs use is one which was granted pursuant to a memorandum of transfer made on 13 January 1916. The terms of the grant are: "… full and free right and liberty for the said William Thomas Burch his executors administrators and assigns or other the registered proprietor or proprietors for the time being of said Lots 2 and 3 on said deposited plan No 8291 and his and their tenants and servants and all persons authorized by him or them from time to time and at all times hereafter at his and their will and pleasure to pass and repass with or without horses and other animals motors and carriages over and along the piece of land twelve feet wide marked on said deposited plan as site of proposed right of way and thereon colored brown…"