McWilliam v Hunter [2022] NSWSC 342

McWilliam v Hunter [2022] NSWSC 342

Imposing a 2.8m height restriction above the right of carriageway would amount to a real substantial interference with the plaintiffs' reasonable use and enjoyment of the easement and would substantially injure their rights; therefore, the plaintiffs are entitled to an injunction to prevent the development and the easement should not be modified as sought by the defendants.

Parties
First Plaintiff/first Cross Defendant: Phillip McWilliam; Second Plaintiff/second Cross Defendant: Susan McWilliam; First Defendant/first Cross Claimant: Howard Hunter; Second Defendant/second Cross Claimant: Wendy Hunter
Jurisdiction
Australia
Judgment Date
28 March 2022
Procedural Posture
Equity / Principal Judgment
Outcome
Plaintiffs' claim for injunctive relief granted; defendants' amended cross-claim for modification of easement dismissed; costs to plaintiffs.
Legal Topics
Easements, Unreasonable Interference With Easement, Modification of Easement, Injunctive Relief
Real Property Easements Unreasonable Interference With Easement Modification of Easement Injunctive Relief

Case Brief

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Parties

Phillip McWilliam

First Plaintiff/first Cross Defendant

Susan McWilliam

Second Plaintiff/second Cross Defendant

Howard Hunter

First Defendant/first Cross Claimant

Wendy Hunter

Second Defendant/second Cross Claimant

Procedural Posture

Equity / Principal Judgment

Legal Issues

  1. 1 Whether the defendants' proposed construction limiting the right of carriageway to 2.8m clearance is an unlawful obstruction or substantial interference with the easement.
  2. 2 Whether the easement should be modified under s 89(1) of the Conveyancing Act 1919 (NSW) to effect a height limitation of 2.8m above the right of carriageway.

Ratio Decidendi

Imposing a 2.8m height restriction above the right of carriageway would amount to a real substantial interference with the plaintiffs' reasonable use and enjoyment of the easement and would substantially injure their rights; therefore, the plaintiffs are entitled to an injunction to prevent the development and the easement should not be modified as sought by the defendants.

Court Disposition

Plaintiffs' claim for injunctive relief granted; defendants' amended cross-claim for modification of easement dismissed; costs to plaintiffs.

Orders

  • Defendants restrained from constructing the proposed development with 2.8m clearance above the right of carriageway.
  • Amended Cross-Claim dismissed.