Greta Land Company Pty Ltd v Susan Maria Basalto [2011] NSWSC 955

Greta Land Company Pty Ltd v Susan Maria Basalto [2011] NSWSC 955

The plaintiff showed an arguable case for final relief based on evidence of long-standing use of the disputed access way, and the balance of convenience favoured short-term reinstatement of access because the defendants identified no significant prejudice if access was temporarily limited to occupants and persons with lawful reasons to enter the plaintiff's land.

Jurisdiction
Australia
Judgment Date
15 June 2011
Procedural Posture
Proceedings Seeking Access Over Defendants' Land by Way of Easement or Order Under S 88 K, With Notice of Motion for Interim Injunctive Relief / First Return; Interim Injunction Pending Interlocutory Hearing
Outcome
Interim injunction granted; proceedings adjourned for interlocutory hearing.
Legal Topics
['interim Injunction' 'easements' 'implied Easement' 'prescriptive Easement' 'conveyancing Act 1919 (nsw) S 88 K' 'balance of Convenience' 'access to Land']
['equity' 'property Law' 'civil Procedure'] ['interim Injunction' 'easements' 'implied Easement' 'prescriptive Easement' 'conveyancing Act 1919 (nsw) S 88 K' 'balance of Convenience' 'access to Land']

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Procedural Posture

Proceedings Seeking Access Over Defendants' Land by Way of Easement or Order Under S 88 K, With Notice of Motion for Interim Injunctive Relief / First Return; Interim Injunction Pending Interlocutory Hearing

Legal Issues

  1. 1 ['Whether the plaintiff had a sufficiently seriously arguable case for final relief to justify interim injunctive relief.' "Whether the balance of convenience favoured interim restoration of access over the defendants' land pending interlocutory hearing." "Whether interim access should be limited to occupants and persons having lawful reason to enter the plaintiff's property."]

Ratio Decidendi

The plaintiff showed an arguable case for final relief based on evidence of long-standing use of the disputed access way, and the balance of convenience favoured short-term reinstatement of access because the defendants identified no significant prejudice if access was temporarily limited to occupants and persons with lawful reasons to enter the plaintiff's land.

Court Disposition

Interim injunction granted; proceedings adjourned for interlocutory hearing.

Orders

  • ["Upon the plaintiff by its counsel giving to the Court the usual undertaking as to damages, the defendants by themselves, their servants and agents, be restrained until and including 30 June 2011 from preventing, hindering or interfering with the passage by the plaintiff's director Alan Frederick Keller and the...