CLIFFORD & ANOR v. DOVE [2003] NSWSC 938

CLIFFORD & ANOR v. DOVE [2003] NSWSC 938

The defendant's removal and destruction of functional cattle yard equipment substantially and unreasonably impeded the plaintiffs' easement right to use the cattle yards at the Meryla Road entrance, amounting to nuisance; damages alone would not adequately protect an appurtenant property right, so a mandatory injunction restoring the cattle yards was required. The plaintiffs were entitled to construct an all-weather road surface reasonably within the easement. The remaining steel posts and threatened re-erection of electric fencing on the easement justified removal and restraint orders. The gate claim failed because the plaintiffs did not prove the defendant caused the original removal....

Jurisdiction
Australia
Judgment Date
28 October 2003
Procedural Posture
Equity Proceedings Concerning Easement Rights and Cross Claim for Alleged Personal Injury / Judgment on Amended Summons and Cross Claim After Hearing
Outcome
Mandatory and restraining relief granted in part for the plaintiffs; claim 2 dismissed; damages to be assessed after restoration; judgment for the cross-defendants on the cross-claim with costs.
Legal Topics
['easements' 'right of Way' 'use of Cattle Yards' 'mandatory Injunction' 'nuisance by Interference With Easement' 'positive Covenants to Repair' 'cross Claim Barred by Motor Accidents Legislation']
['property Law' 'equity' 'tort' 'motor Accidents Compensation'] ['easements' 'right of Way' 'use of Cattle Yards' 'mandatory Injunction' 'nuisance by Interference With Easement' 'positive Covenants to Repair' 'cross Claim Barred by Motor Accidents Legislation']

Case Brief

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Procedural Posture

Equity Proceedings Concerning Easement Rights and Cross Claim for Alleged Personal Injury / Judgment on Amended Summons and Cross Claim After Hearing

Legal Issues

  1. 1 ["Whether the defendant's removal of cattle crush, calf cradle, fencing and other equipment from cattle yards burdened by an easement substantially interfered with the plaintiffs' right to use the cattle yards and warranted a mandatory injunction." "Whether the plaintiffs, as dominant owners, were entitled to construct or improve an all-weather road surface within the right of way without the defendant's consent." "Whether steel posts and an electric fence around Photinia plantings on the easement unreasonably obstructed the plaintiffs' use of the right of way for moving cattle." 'Whether the defendant should be ordered to reinstate a gate and fence post formerly used to manage cattle movements across the right of way.' 'Whether clause 1(b) of the s.88B instrument gave the plaintiffs an adequate remedy by notice and rectification, and whether positive covenants to pay repair costs bound successors in title.' "Whether the defendant's cross-claim for personal injury arising from alleged use of a Range Rover on the easement was barred by the Motor Accidents Compensation Act 1999."]

Ratio Decidendi

The defendant's removal and destruction of functional cattle yard equipment substantially and unreasonably impeded the plaintiffs' easement right to use the cattle yards at the Meryla Road entrance, amounting to nuisance; damages alone would not adequately protect an appurtenant property right, so a mandatory injunction restoring the cattle yards was required. The plaintiffs were entitled to construct an all-weather road surface reasonably within the easement. The remaining steel posts and threatened re-erection of electric fencing on the easement justified removal and restraint orders. The gate claim failed because the plaintiffs did not prove the defendant caused the original removal....

Court Disposition

Mandatory and restraining relief granted in part for the plaintiffs; claim 2 dismissed; damages to be assessed after restoration; judgment for the cross-defendants on the cross-claim with costs.

Orders

  • ['Mandatory injunction to be drafted for reinstating cattle yards.' 'Order that within seven days the defendant remove from the site of the easement in Deposited Plan 731284 all steel posts formerly supporting the electric fences.' 'Order that the defendant by herself, her servants and agents be permanently...