Korolkova v Mazoudier [2011] NSWSC 1587

Supreme Court New South Wales

Medium Neutral Citation: Korolkova v Mazoudier [2011] NSWSC 1587 Hearing dates: Thursday, 1 December 2011;Tuesday, 6 December 2011 Decision date: 20 December 2011 Jurisdiction: Equity Division - Duty List Before: White J Decision: Refer to paras [31] and [34] of judgment. Catchwords: REAL PROPERTY - easements - right of carriageway - whether substantial interference with use of right of carriageway - where use of right of carriageway infrequent Cases Cited: Carlson & Anor v Carpenter (1998) NSW ConvR 55-848 Category: Interlocutory applications Parties: Elena Korolkova (Plaintiff) Mitchell Walter Mazoudier (Defendant) Representation: J Jobson (Plaintiff) In person (Defendant) Zelden Solicitors (Plaintiff) N/a (Defendant) File Number(s): 2011/352936

Judgment 1HIS HONOUR : By her summons filed on 4 November 2011 the plaintiff, Ms Korolkova, seeks an order that the defendant be restrained from placing any obstruction on an easement for right of way contained in DP 709495 so as to deny lawful access to lot 172 of DP 709495. 2Although by her summons the plaintiff sought only interlocutory relief, the hearing proceeded on the basis that the relief claimed was final relief. 3The plaintiff is the registered proprietor of lot 172. The defendant, Mr Mazoudier, is an occupier of lot 171 of DP 709495. The plaintiff is entitled to the benefit of a right of carriageway over lot 171. The registered proprietor of lot 171 is a deregistered company. 4Lot 171 abuts Prince Alfred Parade, Newport. Lot 172 has no street frontage to Prince Alfred Parade. The only access to lot 172 from the street is via the right of carriageway. Lot 172 abuts reclaimed land adjacent to Pittwater. It is a vacant lot of generally steeply sloping land from the boundary with lot 171 to the reclaimed land. There is a constructed driveway along the right of carriageway that stops about a metre short of the boundary with lot 172. The driveway follows an S curve. It is quite steep. At the end of the constructed driveway there is a grassed area that levels out somewhat without ever becoming entirely level. In the first few metres of lot 172 adjacent to the right of carriageway the land is on a moderate slope before falling away more steeply. It would be possible to take a vehicle down the right of carriageway and park it on lot 172 adjacent to the boundary. It would be possible, but potentially risky, to make a three-point turn on lot 172. 5Mrs Korolkova deposed that Mr Mazoudier had obstructed access to Lot 172 by blocking the right of way. On 29 March 2011 her solicitors, Gadens Lawyers, wrote to Mr Mazoudier to complain that the right of way was blocked by an unregistered car being parked on the right of way and by a large car trailer with an open metal cage being also parked on the right of way. 6A view was taken. On the view the trailer was found to be placed near the boundary of lot 172. Both it, and a motor vehicle which was also parked on the right of carriageway, would have obstructed vehicular access, although not access on foot. 7The plaintiff deposed that it was her intention to sell the property. She has obtained development approval for the construction of a house on lot 172. She said that she had entered into an agreement with the real estate agent for the agent to market the property for sale, but because of the obstructions to the right of way, the property was removed from the market. 8The plaintiff and her solicitor arranged a confrontation for 29 September 2011. The plaintiff's solicitor, Mr Zelden, arranged for tow truck drivers to arrive at the premises on that date in order to move the trailer and a Saab motor vehicle that was located on the driveway. Mr Zelden telephoned the local police to attend at the premises on that day to prevent (as he described it) a breach of the peace during the proposed removal of the motor vehicle and trailer. 9A person whose enjoyment of an easement is substantially interfered with is entitled to abate the interference by removing an obstruction to the right of way. It does not appear from the plaintiff's evidence that on the morning of 29 September 2011 she had any intention of using the right of way. 10Having arranged for the police to be present, Mr Zelden attended the premises and spoke to Mr Mazoudier. Mr Zelden told Mr Mazoudier that he could not park his motor vehicles, where they were then parked on the right of way. Mr Mazoudier replied " Yes I can park here anytime I like. The Right of Way is not operable and the land belongs to me ." Mr Zelden said " That is not correct. You can not park here and I have instructions to move these two vehicles away from the Right of Way. " 11Both Mr Zelden and Mr Mazoudier were wrong. Mr Zelden's position that Mr Mazoudier could not park a vehicle on the right of way because it was a right of way was wrong. It is true that Mr Mazoudier is not entitled to block the plaintiff's use of the right of way. But no use was proposed. Mr Mazoudier was wrong to say that the right of way was " inoperable ". The plaintiff is entitled to use the right of way either on foot or by vehicle to obtain access to lot 172. The occasions for her doing so may be infrequent, but that does not mean that the right of way is " inoperable ". 12Fortunately, the potential confrontation that the plaintiff through her solicitor engineered was avoided. Mr Mazoudier said that if the vehicles were removed he would put them back in the evening and apparently Mr Zelden decided not to press the issue. 13The plaintiff's affidavits contained no evidence that the obstruction of the right of way had interfered with any attempted use of the right of way by the plaintiff or any person authorised by her. The plaintiff's solicitor had complained in the letter of 29 March 2011 that on 25 February 2011 the plaintiff's gardener had been denied vehicular access to the property. The affidavits read for the plaintiff contained no evidence of that alleged fact. The event was said to have occurred more than eight months before proceedings were commenced. 14Without objection from Mr Mazoudier, oral evidence was given by the plaintiff's husband, Mr Korolkov, about attempts to use the right of carriageway. Mr Korolkov gave evidence that he was present when a geotechnical engineer had attempted to gain access to the property to drill bore holes for the purposes of the application to the council for development approval. He said that the geotechnical engineer needed to use a " big equipment machine " to dig the holes, but could not get through and he asked that a car blocking the driveway be removed. Mr Korolkov said that it was not removed. The following day the geotechnical engineer arrived with a small machine and manually drilled the holes. 15There was no evidence as to when this incident occurred. Mr Mazoudier said that the geotechnical engineer had arrived with a " large four-wheel drive ute ... with a substantial trailer with the drilling rig attached to the rear of it ". He said that the vehicle could not have got down the driveway. He said that although there was a vehicle parked in the driveway the geotechnical engineer walked to the bottom of the driveway, but did not ask for the vehicle to be removed. It was Mr Mazoudier's opinion that the vehicle and attached trailer was too large to be manoeuvred down and back up the driveway. I accept that that was so. The engineer arrived later with the manual drilling rig with which he obtained access on foot to lot 172. 16Mr Korolkov also gave evidence that he was present on one occasion in which the gardener attempted to use the right of carriageway in order to cut the grass, but the gardener could not obtain access to the property by vehicle down the driveway because the driveway was blocked and nobody was at home to move the car. Mr Korolkov said that the gardener gained access to the site through a neighbouring property. 17Mr Mazoudier said that the grass on lot 172 had been cut three times in three years; the last time being by the adjoining owner. It may well be the case that the gardener to whom Mr Korolkov referred sought to obtain access to the property by vehicle. There is no parking on Prince Alfred Parade in the vicinity of the property. I accept Mr Korolkov's evidence that there was an occasion on which a gardener retained by him or his wife attempted to take his vehicle down the driveway, but could not do so. 18That is the only instance that the plaintiff has proved that the plaintiff or her husband or anyone authorised by any of them has been obstructed from driving a vehicle from Prince Alfred Parade to lot 172. If the occasion to which Mr Korolkov referred was the same occasion as that referred to in Gaden's letter of 29 March 2011, it occurred in February of this year. 19Mr Korolkov said in examination-in-chief that he had attempted to use the right of way at least five times, but was unable to do so because of the obstructions. However, in cross-examination he said that he would not be prepared to take his own car to park on the grass at the end of the driveway. I do not accept his evidence that he attempted to use the driveway to drive his car to the property. He gave no evidence of having any reason to do so. Rather, I think that Mr Korolkov was referring to the number of occasions in which he complained that the driveway was obstructed. He was not referring to occasions on which he intended to make use of the driveway by driving a car onto the property. 20The physical condition of lot 172 is such that it would only be on very infrequent occasions that the plaintiff or anyone authorised by her would be likely to want to use the right of carriageway to take a vehicle to lot 172. The land is not being used and cannot be used in its present condition. From time to time some maintenance should be done on the land, such as cutting the grass, and it could be expected that the right of carriageway would be used on such occasions to enable the person who was carrying out such tasks of maintenance to drive a vehicle to park it on the property if he or she was prepared to take the risk of parking on the sloping land. 21The plaintiff and persons authorised by her are under no obligation to give prior notice to the occupiers of lot 171 of their intention to use the right of carriageway. But it would be reasonable for them to do so. The plaintiff's right as owner of the dominant tenement is not a right of ownership over the right of carriageway, but only a right to use the right of carriageway. Mr Mazoudier and his sons, who are the occupiers of lot 171, do not interfere with the right of carriageway by parking their cars on the right of carriageway or by positioning a trailer on the right of carriageway, except when the plaintiff or persons authorised by her seek to use it. On the evidence there has only been one such occasion in which such attempted use has been interfered with. 22Mr Mazoudier professed a willingness to allow the plaintiff or persons authorised by her to use the driveway as a right of carriageway. He said he had no intention of interfering with that right. I do not accept that evidence. In my view, Mr Mazoudier has deliberately obstructed the right of carriageway so that it could not be used, even on those few occasions which the plaintiff or persons authorised by her might seek to use it. 23In a letter of 6 June 2011 addressed to plaintiff's selling agent, LJ Hooker Mona Vale, Mr Mazoudier stated that in order to assist with the sale of lot 172 he would arrange for the removal of the Saab motor vehicle that was located on the driveway and for the removal of the trailer and take other steps if the plaintiff reinstated what he said were arrangements that had been in place since 1984 for the sharing of waterfront facilities at Pittwater adjacent to lot 172. I am satisfied that Mr Mazoudier has used the obstruction of the right of carriageway as a lever to attempt to obtain enforceable rights against the owner of lot 172 in relation to those waterfront facilities. 24The plaintiff has the right from time to time and at all times to use the right of carriageway. That right is not to be substantially interfered with by way of obstructions, whether of a permanent or temporary nature ( Carlson & Anor v Carpenter (1998) NSW ConvR 55-848 at 56-641). An obstruction of a right of way is not actionable unless it is substantial, but the obstructions by the trailer and the parking of motor vehicles on the right of way are substantial. 25There is no reason why the trailer needs to be parked on the right of way. It is a deliberate obstruction. It could not be moved on short notice. There is ample space for the trailer to be located off the right of carriageway. Its continued location on the right of carriageway where there is other space for it to be parked is indicative of Mr Mazoudier's intention to obstruct the plaintiff's use of the right of carriageway. 26The positioning of cars on the right of carriageway is a different matter. The only other place on which the cars could be parked off the right of carriageway is under a large gum tree where there is a risk of damage from falling branches. Nonetheless, if the plaintiff or persons authorised by her wish to use the right of carriageway, they are entitled to do so without obstruction from such vehicles. 27That does not mean that the mere parking of motor vehicles on the right of carriageway is a nuisance. It would only be an actionable nuisance if it substantially interferes with the plaintiff's intended use of the right of carriageway. Although the claims sought in the plaintiff's summons is limited to a claim requiring the removal of obstructions that interfere with the use of the right of way, it is clear from the plaintiff's conduct and affidavit that she seeks to have the vehicles removed, whether she intends to use the right of carriageway or not. She has no such right. That claim is tantamount to a claim of ownership over the right of carriageway. 28Given the infrequency of the use to be made of the right of carriageway, one would expect the plaintiff to give notice to Mr Mazoudier or the other occupiers of lot 171 of when she, or a person authorised by her, intended to take a vehicle to the property. Nonetheless, she is entitled to use the right of carriageway at any time and it is not an implied term of the right of carriageway that notice be given to the occupier of the servient tenement as to when the right of carriageway is proposed to be used. 29The plaintiff is entitled to an injunction to restrain the defendant from obstructing her use, or the use by persons authorised by her, of the right of carriageway. In the circumstances of this case, where the right of carriageway would only be used very infrequently, there would not be a contumacious breach of that order unless Mr Mazoudier or the other occupiers knew when the plaintiff intended that the right of carriageway be used. That is to say, because Mr Mazoudier or his sons would be entitled to park vehicles on the right of carriageway without thereby interfering with the plaintiff's right if the plaintiff had no use of the right of carriageway, they would not be in contempt of the order if they do not know that the right of carriageway was likely to be used. 30On the other hand, the trailer is a deliberate obstruction. It could not be moved on short notice. There should be an order requiring its removal from the right of carriageway. 31For these reasons I make the following orders: 1. Order that within 28 days the defendant remove from the right of carriageway contained in DP 709495 the trailer that presently obstructs access from the said right of carriageway to lot 172 in DP 709495. 2. Order that the defendant by himself, his servants and agents be restrained from obstructing or interfering with the use by the plaintiff or persons authorised by her of the said right of carriageway. 32Although the plaintiff has obtained the relief substantially as sought, she has not had substantial success. As I have observed, the plaintiff's position was that any obstruction to the right of carriageway was actionable. That position was not reflected in the form of the order sought in the summons, but if the order sought in the summons was made without other clarification, it is clear the plaintiff would have used the order to assert an untenable position. The order made is only to restrain the defendant from interfering with or obstructing the plaintiff's use of the right of carriageway, not to restrain an obstruction of the right of carriageway per se. The plaintiff asserted that she was entitled to remove any obstruction whether or not she or persons authorised by her proposed to use the right of carriageway. The attempt to involve the police to assist in the assertion of that unwarranted claim should be condemned. Whilst the plaintiff has achieved a measure of success, she should not be entitled to costs. 33Nor has the defendant been successful. Had I accepted his protestations that he did not seek to interfere with the exercise of the right of carriageway, I would have refused to grant injunctive relief. But I have not accepted those protestations. 34In these circumstances, I make no order as to costs. 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: 20 December 2011