Australian Unity Retirement Living Management Pty Ltd v Karimbla Properties (No. 10) Pty Limited [2019] NSWSC 635

Australian Unity Retirement Living Management Pty Ltd v Karimbla Properties (No. 10) Pty Limited [2019] NSWSC 635

The court found the defendants' use of the shared driveway caused substantial interference with the plaintiffs' easement rights and excessive user of the defendants' own easement, by reason of frequent vehicle parking, loading/unloading, unsupervised pedestrians, and bin placement, to an extent that justified equitable and injunctive relief. However, the court also determined that equitable relief should be tailored on terms, accounting for the physical changes previously caused by the plaintiffs (Anglesea ramp and retaining wall) and the interrelationship between the parties' respective property and easement rights. Orders were granted to regulate driveway use (including signage,...

Parties
First Plaintiff: Australian Unity Retirement Living Management Pty Ltd; Second Plaintiff: Lifestyle Manor Bondi Pty Ltd; Third Plaintiff: Lifestyle Manor Anglesea Pty Ltd; Fourth Plaintiff: Australian Unity Aurora Pty Ltd; First Defendant: Karimbla Properties (No. 10) Pty Ltd; Second Defendant: Yeshiva College Bondi Limited; Third Defendant: Our Big Kitchen Pty Ltd; Fourth Defendant: Rabbi Dovid Slavin
Jurisdiction
Australia
Judgment Date
31 May 2019
Procedural Posture
Civil / Final Judgment After Trial
Outcome
Relief granted; declaratory and injunctive orders made on terms as to regulation of driveway and easement use, with some issues reserved for further submissions.
Legal Topics
Easements, Substantial Interference, Excessive User, Nuisance, Rectification, Injunctions
Real Property Equity Easements Substantial Interference Excessive User Nuisance Rectification Injunctions

Case Brief

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Parties

Australian Unity Retirement Living Management Pty Ltd

First Plaintiff

Lifestyle Manor Bondi Pty Ltd

Second Plaintiff

Lifestyle Manor Anglesea Pty Ltd

Third Plaintiff

Australian Unity Aurora Pty Ltd

Fourth Plaintiff

Karimbla Properties (No. 10) Pty Ltd

First Defendant

Yeshiva College Bondi Limited

Second Defendant

Our Big Kitchen Pty Ltd

Third Defendant

Rabbi Dovid Slavin

Fourth Defendant

Procedural Posture

Civil / Final Judgment After Trial

Legal Issues

  1. 1 Whether defendants' use of shared driveway constituted substantial interference with the plaintiffs' easement rights and/or excessive user of the easement by the defendants; whether injunctive and ancillary relief should be granted; whether plaintiffs' own conduct (construction works, delay) should bar or condition relief; proper construction and application of easement terms in changed physical circumstances.

Ratio Decidendi

The court found the defendants' use of the shared driveway caused substantial interference with the plaintiffs' easement rights and excessive user of the defendants' own easement, by reason of frequent vehicle parking, loading/unloading, unsupervised pedestrians, and bin placement, to an extent that justified equitable and injunctive relief. However, the court also determined that equitable relief should be tailored on terms, accounting for the physical changes previously caused by the plaintiffs (Anglesea ramp and retaining wall) and the interrelationship between the parties' respective property and easement rights. Orders were granted to regulate driveway use (including signage,...

Court Disposition

Relief granted; declaratory and injunctive orders made on terms as to regulation of driveway and easement use, with some issues reserved for further submissions.

Orders

  • Rectification of registered easement instrument to note variable width.
  • Painted marking of easement boundaries to be corrected.