Burke v Frasers Lorne Pty Ltd [2008] NSWSC 988

Burke v Frasers Lorne Pty Ltd [2008] NSWSC 988

Absent special provision in the grant, a servient owner is not entitled unilaterally to change the surface of a right of carriageway to an inferior one or otherwise disrupt or degrade it where the existing constructed surface is within the grant and not an excessive user. Frasers Lorne had no right to remove the long-standing asphalt surface and replace it with reinforced turf, which was inferior for use of the carriageway. Given the plaintiffs' very strong prima facie case, their undertaking as to damages, the short notice and completion of works despite notice of the interlocutory application, the balance of convenience favoured interlocutory mandatory relief restoring the road.

Jurisdiction
Australia
Judgment Date
12 August 2008
Procedural Posture
Equity Division Proceeding Concerning a Right of Carriageway and Interlocutory Mandatory Injunction / Interlocutory Application for Mandatory Relief Requiring Restoration of Asphalt Surface
Outcome
Interlocutory mandatory injunction granted; defendant ordered to restore the right of carriageway to a condition not inferior to its pre-existing asphalt surface.
Legal Topics
['easements' 'right of Carriageway' 'dominant and Servient Owners' 'interlocutory Injunctions' 'mandatory Interlocutory Injunctions' 'balance of Convenience']
['real Property' 'equity'] ['easements' 'right of Carriageway' 'dominant and Servient Owners' 'interlocutory Injunctions' 'mandatory Interlocutory Injunctions' 'balance of Convenience']

Case Brief

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Procedural Posture

Equity Division Proceeding Concerning a Right of Carriageway and Interlocutory Mandatory Injunction / Interlocutory Application for Mandatory Relief Requiring Restoration of Asphalt Surface

Legal Issues

  1. 1 ['Whether the servient owner could unilaterally remove asphalt from part of a right of carriageway and replace it with reinforced turf.' 'Whether the replacement of asphalt with reinforced turf was an actionable obstruction of the right of carriageway.' 'Whether the plaintiffs had a sufficiently strong prima facie case and whether the balance of convenience favoured an interlocutory mandatory injunction restoring the asphalt surface.']

Ratio Decidendi

Absent special provision in the grant, a servient owner is not entitled unilaterally to change the surface of a right of carriageway to an inferior one or otherwise disrupt or degrade it where the existing constructed surface is within the grant and not an excessive user. Frasers Lorne had no right to remove the long-standing asphalt surface and replace it with reinforced turf, which was inferior for use of the carriageway. Given the plaintiffs' very strong prima facie case, their undertaking as to damages, the short notice and completion of works despite notice of the interlocutory application, the balance of convenience favoured interlocutory mandatory relief restoring the road.

Court Disposition

Interlocutory mandatory injunction granted; defendant ordered to restore the right of carriageway to a condition not inferior to its pre-existing asphalt surface.

Orders

  • ['Upon the plaintiffs by their counsel giving to the Court the usual undertaking as to damages, order that until further order the defendant by 19 August 2008 restore the road in the right of carriageway to a condition not inferior to that in which it was prior to 6 August 2008, including by replacing with an...