Supreme Court New South Wales Medium Neutral Citation: Greta Land Company Pty Ltd v Susan Maria Basalto [2011] NSWSC 955 Hearing dates: 15/06/2011 Decision date: 15 June 2011 Jurisdiction: Equity Division - Duty List Before: Brereton J Decision: Defendants restrained from preventing, hindering or interfering with the passage of persons having lawful reason to enter certain property via part of defendants' land. Catchwords: INJUNCTIONS - Interim injunction - plaintiff seeks easement over defendants' land - arguable case for final relief - balance of convenience - no prejudice to defendants if interim access granted to plaintiff's property. Legislation Cited: (NSW) Conveyancing Act 1919, s 88K Category: Procedural and other rulings Parties: Greta Land Company P/L (plaintiff) Susan Maria Basalto (first defendant) Malcolm Frederick Rose (second defendant) Representation: Counsel: J M Ireland QC w Mr M Hall (plaintiff) SM Basalto (in person) MF Rose (in person) Solicitors: John Mulally & Associate (plaintiff) File Number(s): 2011/191118 Judgment (ex tempore) 1These proceedings were instituted on 10 June 2011 and, pursuant to an abridgement of time for service, are first returnable before court today. By notice of motion the plaintiff Greta Land Company Pty Ltd, in substance, seeks to have access over a strip of land over property now owned by the defendants reinstated, it having recently been obstructed. 2The plaintiff claims that it is entitled to an easement, arising either by implication or by prescription, or alternatively imposed pursuant to (NSW) Conveyancing Act 1919 , s 88K. Although the defendants' position in that respect is not yet clear, they not having had the opportunity to obtain legal advice, it can be assumed for present purposes that they will dispute that the plaintiff has any such right over their land. 3The defendants have sought an opportunity to obtain legal advice, and I have indicated that they will naturally be afforded that opportunity. Today I am concerned only with the interim position between now and when the matter returns to court. It has been agreed that the matter should come back to court for interlocutory hearing, if required, on Thursday 30 June, just over two weeks hence. Accordingly, I am concerned with the interim position for a period of just over two weeks. 4Although on an application for an interim injunction the considerations are substantially the same as those on one for an interlocutory injunction - in that the Court will be concerned essentially as to whether there is a sufficiently seriously arguable case for final relief, and that having regard to the balance of convenience an interim injunction is warranted - typically, however, the Court will examine the matter much more robustly and less finely than it would on an interlocutory hearing, and adopt a rather more pragmatic approach as to what should be the interim position. 5I do wish to make it clear at this stage that the interim regime that I will impose should be taken in no way to constrain the Judge who hears the interlocutory application. It may well be that the plaintiff will establish a case for more extensive interlocutory relief than I propose to grant today. Similarly, it may well be that the defendants will show that there should be no interlocutory relief, or much less extensive relief than that which I propose to grant today. What I do, is simply to hold the position and deal with the living arrangements of the occupants for the very short term. 6Proceeding on that basis, it seems clear enough to me that the plaintiff has an arguable case for final relief, whether by way of implied easement, prescriptive easement or ultimately if necessary pursuant to s 88K. There does appear to be, at this early stage, strong evidence of user of the access way in dispute over very many years. The closure of the access way is apparently very recent, following the acquisition of the lot over which it runs by the defendants, only last month. It is an easy inference to draw, in the present circumstances, that the defendants, who acquired that land for $4,000, knew that the strip of land was used for access by the plaintiff's tenants. For those very short reasons there is, I think, an arguable case for final relief to the effect claimed by the plaintiff. 7The important considerations on the present application are the balance of convenience and prejudice, bearing in mind that I am concerned only with a period of two weeks. 8For the defendants, Ms Basalto has very fairly and reasonably indicated that there is no significant prejudice or detriment to them from an interim restoration of access for a short time, provided that it is limited to the occupants of the property. Whilst I appreciate that the plaintiff contends that ultimately there is no reason for any such limitation, the pragmatism with which an interim application like the present must be approached, equally indicates that there is no significant prejudice or detriment to the plaintiff from access being limited in that way in the short term. 9In those circumstances, I think it can clearly be said that the balance of convenience favours reinstating access for the present occupants of the property. So far as persons other than the occupants are concerned, there is similarly no objection to access being reinstated for those having proper legal reasons to enter the plaintiff's property, such as emergency services. For others, there is evidence that alternative, albeit sub-optimal, access is available, that can be availed of if need be in the short term. 10Accordingly, my orders are: 1.Upon the plaintiff by its counsel giving to the Court the usual undertaking as to damages, order that the defendants by themselves, their servants and agents, be restrained until and including 30 June 2011 from preventing, hindering or interfering with the passage by the plaintiff's director Alan Frederick Keller and the plaintiff's tenants Debbie Anne Chenery, Daryl George Riley and their son, Rainey Bagmore, and by any person having any lawful reason for entering upon the land comprised in folio identifier XXX/XXXXXX, across that part of the land in folio identifier X/XXXXXXX that is marked A and coloured yellow on the plan annexed to these orders, which is schedule 1 to the statement of claim filed in these proceedings. 2.Direct that the defendants serve any affidavit evidence upon which they propose to rely in opposition to the plaintiff's interlocutory application by Tuesday 28 June 2011. 3.Adjourn the proceedings to Thursday 30 June 2011 at 10 am before the Duty Judge for interlocutory hearing. 4.I note that both defendants are in Court today when these orders were pronounced. I direct that these orders be entered forthwith. I further note that it is agreed that it will not be a contravention of these orders if the current obstructions are not removed before 9 am tomorrow, 16 June 2011. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 August 2011