David Peter Buckley v David Francis Timbury & Anor [2013] NSWSC 1009

David Peter Buckley v David Francis Timbury & Anor [2013] NSWSC 1009

The court found that the latching of the gate by the servient owners was not unreasonable or a substantial interference with the plaintiff’s easement, given the need to secure livestock and the evidence of the gate’s unreliability. The placement of rocks in the subsurface drains, however, did constitute actionable interference as it impeded drainage and caused erosion, affecting the plaintiff's right to reasonable use of the easement. The stones on the grassy verge did not prevent mowing within the easement and thus were not an actionable interference.

Jurisdiction
Australia
Judgment Date
01 August 2013
Procedural Posture
Civil / Principal Judgment After Trial
Outcome
Actionable interference to easement made out in part, but rejected in part. Injunction granted regarding drains. Directions for submissions as to costs.
Legal Topics
['torrens Title' 'right of Carriageway' 'actionable Interference' 'easement Obstruction']
['real Property' 'easements'] ['torrens Title' 'right of Carriageway' 'actionable Interference' 'easement Obstruction']

Case Brief

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Procedural Posture

Civil / Principal Judgment After Trial

Legal Issues

  1. 1 ['Whether the servient owners (the Timburys) caused actionable interference to the easement by latching a gate, blocking sub-surface drains, placing roadside rocks, or erecting poles on the road surface.']

Ratio Decidendi

The court found that the latching of the gate by the servient owners was not unreasonable or a substantial interference with the plaintiff’s easement, given the need to secure livestock and the evidence of the gate’s unreliability. The placement of rocks in the subsurface drains, however, did constitute actionable interference as it impeded drainage and caused erosion, affecting the plaintiff's right to reasonable use of the easement. The stones on the grassy verge did not prevent mowing within the easement and thus were not an actionable interference.

Court Disposition

Actionable interference to easement made out in part, but rejected in part. Injunction granted regarding drains. Directions for submissions as to costs.

Orders

  • ['Injunction restraining the first defendant from placing rocks in or near the subsoil drains under the roadway on the easement or where they are likely to wash into the drains during rain.' 'Otherwise, summons dismissed.' 'Directions for parties to file any submissions on costs by 23 August 2013.' 'Directions for...