FitzGerald v Foxes Lane (NSW) Pty Ltd [2024] NSWSC 1312

FitzGerald v Foxes Lane (NSW) Pty Ltd [2024] NSWSC 1312

Mr FitzGerald is not entitled to construct a crowned road and drains on the right of carriageway as proposed, as this is not shown to be reasonably necessary for his enjoyment of the easement. However, he is permitted to perform minor works where necessary to allow passage, such as cutting crops and filling ruts, provided there is substantial interference, and after providing notice to the servient owner. Foxes Lane Co is entitled to crop over the right of carriageway so long as it does not substantially interfere with the right of passage. Both parties are restricted from acts causing unreasonable interference with each other's rights. Damages of $2,500 are awarded to each side for past...

Parties
Plaintiff: Joseph Roger FitzGerald; First Defendant: Foxes Lane (NSW) Pty Ltd; Second Defendant: Gerardus Johannes Jacobus Kurstjens; Third Defendant: Maria Mattheiu Elisabeth Kurstjens
Jurisdiction
Australia
Judgment Date
21 October 2024
Procedural Posture
Principal Judgment / Final Judgment
Outcome
Orders made as set out in judgment.
Legal Topics
Construction of Easements, Modification and Extinguishment of Easements, Right of Carriageway, Nuisance, Trespass
Land Law Easements Torts Construction of Easements Modification and Extinguishment of Easements Right of Carriageway Nuisance Trespass

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Parties

Joseph Roger FitzGerald

Plaintiff

Foxes Lane (NSW) Pty Ltd

First Defendant

Gerardus Johannes Jacobus Kurstjens

Second Defendant

Maria Mattheiu Elisabeth Kurstjens

Third Defendant

Procedural Posture

Principal Judgment / Final Judgment

Legal Issues

  1. 1 Whether the dominant owner is entitled to construct a crowned unsealed road and drains under the easement
  2. 2 Whether the servient owner is entitled to crop over the right of carriageway
  3. 3 Whether the right of carriageway ought to be extinguished or modified under statute

Ratio Decidendi

Mr FitzGerald is not entitled to construct a crowned road and drains on the right of carriageway as proposed, as this is not shown to be reasonably necessary for his enjoyment of the easement. However, he is permitted to perform minor works where necessary to allow passage, such as cutting crops and filling ruts, provided there is substantial interference, and after providing notice to the servient owner. Foxes Lane Co is entitled to crop over the right of carriageway so long as it does not substantially interfere with the right of passage. Both parties are restricted from acts causing unreasonable interference with each other's rights. Damages of $2,500 are awarded to each side for past...

Court Disposition

Orders made as set out in judgment.

Orders

  • Declaration as to scope of the right of carriageway and the parties' entitlements and restrictions to perform work, subject to notice requirements in the event of substantial interference.
  • Order for the defendants to pay the plaintiff $2,500 in damages for nuisance (loss of amenity resulting from obstruction of the right of carriageway August–December 2022).