David Peter Buckley v David Francis Timbury & Anor (No 2) [2013] NSWSC 1389

David Peter Buckley v David Francis Timbury & Anor (No 2) [2013] NSWSC 1389

The first defendant is restrained from placing rocks in or near the subsoil drains under the roadway on the easement or in positions likely to wash into the drains during flooding, as such actions constitute actionable interference with the plaintiff's easement. The injunction is stayed until the plaintiff complies with previous consent orders by paying the agreed sum. Plaintiff is ordered to pay 25% of defendants' costs relating to specified prayers, reflecting the parties' partial successes.

Jurisdiction
Australia
Judgment Date
20 September 2013
Procedural Posture
Consequential Orders / Post Principal Judgment; Resolution of Costs and Final Relief
Outcome
First defendant restrained; order stayed pending compliance; plaintiff to pay partial costs.
Legal Topics
['easement' 'interference With Easement' 'costs' 'injunctions' 'declarations']
['real Property' 'equity'] ['easement' 'interference With Easement' 'costs' 'injunctions' 'declarations']

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Procedural Posture

Consequential Orders / Post Principal Judgment; Resolution of Costs and Final Relief

Legal Issues

  1. 1 ['Whether an injunction restraining placement of rocks is an appropriate form of relief' 'Whether a declaration should be made instead of an injunction' 'Whether any injunction should be conditional upon payment agreed in previous consent orders' 'Appropriate apportionment of costs given partial success' "Whether first and second defendants' costs should be treated differently"]

Ratio Decidendi

The first defendant is restrained from placing rocks in or near the subsoil drains under the roadway on the easement or in positions likely to wash into the drains during flooding, as such actions constitute actionable interference with the plaintiff's easement. The injunction is stayed until the plaintiff complies with previous consent orders by paying the agreed sum. Plaintiff is ordered to pay 25% of defendants' costs relating to specified prayers, reflecting the parties' partial successes.

Court Disposition

First defendant restrained; order stayed pending compliance; plaintiff to pay partial costs.

Orders

  • ["First defendant restrained from placing rocks in or near the subsoil drains under road surface of the right of way burdening the defendant's property or in a position where such rocks are likely to wash into the drains during times of flooding or heavy rain." 'Enforcement of restraint stayed until plaintiff...