O'Donnell v Furci & 2 ors [2006] NSWSC 753

O'Donnell v Furci & 2 ors [2006] NSWSC 753

There is a strong prima facie case that the first and second defendants have substantially interfered with the plaintiff’s rights of access and threaten ongoing obstruction. Where substantial interference is shown, and the balance of convenience favours the applicant—particularly given medical needs—injunctive relief is appropriate. The right of carriageway cannot be used in a manner that substantially impedes the plaintiff’s access, whether by agents or contractors of defendants.

Parties
Plaintiff: Leanne Maree O'Donnell; First Defendant: Patrick Joseph John Furci; Second Defendant: Mary Furci; Third Defendant: Havenview Homes Pty Ltd
Jurisdiction
Australia
Judgment Date
23 June 2006
Procedural Posture
Interlocutory Injunction Application / Interlocutory
Outcome
Interlocutory injunction granted in part; costs order for plaintiff; orders to be entered forthwith.
Legal Topics
Easement, Right of Carriageway, Injunctive Relief, Substantial Interference, Balance of Convenience
Real Property Equity Easement Right of Carriageway Injunctive Relief Substantial Interference Balance of Convenience

Case Brief

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Parties

Leanne Maree O'Donnell

Plaintiff

Patrick Joseph John Furci

First Defendant

Mary Furci

Second Defendant

Havenview Homes Pty Ltd

Third Defendant

Procedural Posture

Interlocutory Injunction Application / Interlocutory

Legal Issues

  1. 1 Whether the first and second defendants have substantially interfered with the plaintiff's right to use the right of carriageway and threaten to continue to do so
  2. 2 Whether balance of convenience favours granting interlocutory injunctive relief
  3. 3 Extent and manner of permissible use of right of carriageway for loading and unloading

Ratio Decidendi

There is a strong prima facie case that the first and second defendants have substantially interfered with the plaintiff’s rights of access and threaten ongoing obstruction. Where substantial interference is shown, and the balance of convenience favours the applicant—particularly given medical needs—injunctive relief is appropriate. The right of carriageway cannot be used in a manner that substantially impedes the plaintiff’s access, whether by agents or contractors of defendants.

Court Disposition

Interlocutory injunction granted in part; costs order for plaintiff; orders to be entered forthwith.

Orders

  • Until further order, the first and second defendants and any third party (including contractors engaged by them) not permit, suffer or cause any blockage or substantial impedance to access by any person to or from Lot 15 in DP 1041447 (207 Fowler Road, Illawong) along the right of carriageway.
  • The costs of the notice of motion of 19 June 2006 will be the plaintiff's costs in the proceedings.