Waynote Pty Limited v Kilpatrick & Ors [2011] NSWSC 1271

Supreme Court New South Wales

Medium Neutral Citation: Waynote Pty Limited v Kilpatrick & Ors [2011] NSWSC 1271 Hearing dates: Friday, 21 October 2011 Decision date: 21 October 2011 Jurisdiction: Equity Division Before: White J Decision: Refer to para [10] of judgment. Catchwords: REAL PROPERTY - easements - right of carriageway - where substantial interference with right of carriageway - mandatory injunction - no question of principle Legislation Cited: Conveyancing Act 1919 Category: Principal judgment Parties: Waynote Pty Limited (Plaintiff) Leslie Kilpatrick (1st Defendant) Margaret Kilpatrick (2nd Defendant) Paul Kilpatrick (3rd Defendant) Kilpatrick Group Pty Limited (4th Defendant) Representation: G McGrath (Plaintiff) No appearance (Defendants) Hansons Lawyers (Plaintiff) N/a (Defendants) File Number(s): 2011/49028

Judgment 1HIS HONOUR : The plaintiff is the developer of a 14-lot industrial subdivision of land at Unanderra, near Wollongong. It is the registered proprietor of eight lots in that subdivision. The first and second defendants are the registered proprietors of lot 9. 2Access to the lots in the subdivision is via the right of carriageway created by deposited plan 1126042. This takes the form of an access road. Strips of land along the access road are owned by the proprietors of separate lots, so that each lot has both the benefit and burden of the right of carriageway. Subject to an immaterial qualification, the right of carriageway is given in terms of the Conveyancing Act 1919, Sch 8 Pt 1. The right is in the following terms: " Full and free right for every person who is at any time entitled to an estate or interest in possession in the land herein indicated as the dominant tenement or any part thereof with which the right shall be capable of enjoyment, and every person authorised by that person, to go, pass and repass at all times and for all purposes with or without animals or vehicles or both to and from the said dominant tenement or any such part thereof. " 3There is no express right of parking. Such a right would only be implied if parking were reasonably necessary for the effective and reasonable exercise and enjoyment of the rights granted to go, pass and repass. 4The defendants appear to use lot 9 in association with a business of metal recycling. For more than 18 months the defendants have parked or deposited large trucks, semi-trailers or other equipment, including skips, on the access road which is the right of carriageway. The vehicles and equipment are parked on parts of the access road that are owned by other lot owners. Indeed, the size of the vehicles is such that a vehicle which is partly parked on that part of the access road which forms part of lot 9 would also be parked on parts of the access road owned by other lot owners. 5The strips of land on the right of carriageway on which the defendants have parked or left vehicles or equipment includes land owned by the plaintiff. Insofar as the defendants have used that land, they have committed a trespass as they have not used the land in ways permitted by the right of carriageway. Insofar as vehicles and equipment have been parked and left over the access road which is part-owned by lot 9, they have obstructed the plaintiff, as well as two other lot owners, from exercising the right of carriageway over that part of the road. 6The interference with the use of the access road by reason of the defendants parking and leaving such vehicles and equipment is substantial. The success of the industrial development depends on all owners and their customers having free right of use of the whole of the carriageway for the movement of large vehicles. 7The defendants have repeatedly promised to move trucks that were parked on the access road but have failed to do so; or, after having moved the trucks, have subsequently parked other vehicles or left trailers or other equipment on the right of carriageway. 8All defendants have appeared. There was no appearance by the defendants today. All defendants have had due notice of the hearing. The defendants sent a facsimile seeking an adjournment of today's hearing on the basis of the health of the first defendant. I refused that application for reasons which I gave earlier. This is a clear case in which the defendants have substantially interfered with the right of carriageway and committed trespass. A mandatory injunction is appropriate to require the removal of the trucks that presently are parked on the right of carriageway. 9I should add that there is clear evidence that the trucks in question are owned or under the control of the defendants. There are admissions by the defendants to the effect that the trucks, or many of them, are owned or controlled by them. Many of them are branded " Kilpatrick Transport ." It is also clear that the parking and leaving of the trucks and other equipment on the right of carriageway is not reasonably necessary for the effective enjoyment by the defendants of their right to go, pass and repass on the right of carriageway. 10For these reasons I make the following declaration and orders. 1. Declare that on the true construction of the right of carriageway shown as easement J in deposited plan number 1126042 ("the right of carriageway") the first and second defendants, their employees, agents, licensees and invitees are not entitled to park or leave vehicles, trailers, machinery, skips or other chattels on the land the subject of the right of carriageway for whatever length of time. 2. Order that within seven days the defendants remove all vehicles, trailers, machinery, skips or other chattels owned by them or any of them, or under the control of them, or any of them, that are on the land the subject of the right of carriageway, and that they do all things in their power to cause such vehicles, trailers, machinery, skips or other chattels that are on the land the subject of the right of carriageway to be removed. 3. Order that the defendants, and each of them, by themselves, their employees and agents be restrained from: (a) parking or leaving, for whatever length of time, any vehicle, trailer, machinery, skip or other chattel on the land the subject of the right of carriageway; and (b) from causing or suffering any vehicle, trailer, machinery, skip or other chattel to be parked or left on the land the subject of the right of carriageway for whatever length of time. 4. Order that the defendants pay the plaintiff's costs of the proceedings, including reserved costs. 5. The exhibits may be returned after 28 days. 6. These orders may be entered forthwith. 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: 01 November 2011