Van Brugge & Anor v Hare & Anor [2011] NSWSC 1640

Supreme Court New South Wales

Medium Neutral Citation: Van Brugge & Anor v Hare & Anor [2011] NSWSC 1640 Hearing dates: 30 November 2011, 13 December 2011 Decision date: 20 December 2011 Jurisdiction: Equity Division Before: Slattery J Decision: Declaration made as sought by the plaintiff. Regime for use and upkeep of inclinator settled. Defendants ordered to pay the plaintiff's costs of the proceedings up to the date of the principal judgment given on 4 November 2011. Catchwords: REAL PROPERTY - Torrens title - easement - parties in dispute as to the form of orders to govern their mutual use and upkeep of the inclinator - parties do not wish to be left merely to their common law rights - parties ask Court to resolve their remaining differences as to the final form of orders. Legislation Cited: Conveyancing Act 1919, s 54A Cases Cited: Bland v Levi [2000] NSWSC 161 Bruce v Nickolaidis & Anor [2011] NSWSC 682 Richard Van Brugge & Anor v Meryl Lesley Hare & Anor [2011] NSWSC 1364 Category: Consequential orders Parties: Plaintiff- Richard van Brugge Second Plaintiff- Chiaki van Brugge Defendant- Meryl Lesley Hare Second Defendant- John Hare Representation: Plaintiff:- T. L. Wong Defendant:- V. R. Gray Plaintiffs- Sparke Helmore Lawyers Defendant- JGP Lawyers File Number(s): 2011/113695 Publication restriction: No.

EX TEMPORE Judgment 1This is the second judgment in these proceedings. In my first judgment, given on 4 November 2011, the Court held that the plaintiffs, the owners of the dominant tenement of an easement ("Easement B" as it was called), had the right under the easement to use a mechanical inclinator affixed to the servient tenement: Richard Van Brugge & Anor v Meryl Lesley Hare & Anor [2011] NSWSC 1364. The Court granted an injunction preventing the defendants from interfering with the plaintiffs' use of the inclinator. 2At the time of judgment the Court directed the parties to bring in short minutes of order to give effect to the Court's reasons and to put argument concerning any remaining issues between them. The plaintiffs made a claim for damages in their Summons. This claim was not further pursued. 3But there were issues on which the parties could not fully agree: the precise form of the declaration to be made consequent upon my principal judgment; the arrangements for servicing and repairing the inclinator; the arrangements for bearing the costs and expenses of operating the inclinator; and an appropriate dispute resolution procedure to govern the parties future dealings. After contested argument on 30 November 2011 these issues between the parties were largely settled but a few still remained. The parties asked the Court to resolve them. 4Apart from the dispute about the appropriate form of declaration, the parties disputes were predicated upon a mutual desire to move beyond general declarations and orders that would merely reflect the common law rights of each party. The parties both thought that would leave too much room for debate in their future dealings. They wanted greater certainty. 5Both parties wanted to put in place a regime to govern their mutual use and upkeep of the inclinator, a regime that would be workable and unlikely to generate avoidable further disputes. Nevertheless both parties wanted their remaining differences to be resolved by reference as closely as possible to their respective common law rights. These orders moulding final relief are made bearing this in mind. 6The final orders in the proceedings are set out at the end of this judgment. The differences debated between the parties and decided on 20 December are set out below by reference to the declaration or order number of each disputed order. The first of these relates to Declaration 1. The orders have annexed to them a "Regime for Co-operative Use of Inclinator", which is described as "the Regime" in these reasons. 7Once again Ms T. Wong represents the plaintiffs and Mr V. Gray the defendants on this aspect of the proceedings.