Brice v Nikolaidis [2011] NSWSC 682

Brice v Nikolaidis [2011] NSWSC 682

The easement does not confer a right to park a vehicle on the right of carriageway where it can reasonably be parked wholly on the dominant tenement, but permits reasonable use, including driving and temporary stopping, over the right of carriageway; therefore, most of the plaintiff’s claim fails and injunction is refused.

Jurisdiction
Australia
Judgment Date
06 July 2011
Procedural Posture
Civil / Principal Judgment
Outcome
Claim for declaration, injunction, and damages by the plaintiff substantially fails; declaration made as specified in para [43]; cross-summons by first defendant dismissed as to paragraph 1.
Legal Topics
['easements' 'right of Carriageway' 'nuisance' 'injunctions' 'parking Rights']
['real Property'] ['easements' 'right of Carriageway' 'nuisance' 'injunctions' 'parking Rights']

Case Brief

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Procedural Posture

Civil / Principal Judgment

Legal Issues

  1. 1 ["Whether the right of carriageway easement includes a right to park a vehicle on the easement where the vehicle can reasonably be parked on the dominant tenement's land" 'Whether driving a private motor vehicle over sandstone pavers laid on the right of carriageway constitutes unreasonable use' 'Whether damages for chipping of sandstone pavers are recoverable as an actionable nuisance']

Ratio Decidendi

The easement does not confer a right to park a vehicle on the right of carriageway where it can reasonably be parked wholly on the dominant tenement, but permits reasonable use, including driving and temporary stopping, over the right of carriageway; therefore, most of the plaintiff’s claim fails and injunction is refused.

Court Disposition

Claim for declaration, injunction, and damages by the plaintiff substantially fails; declaration made as specified in para [43]; cross-summons by first defendant dismissed as to paragraph 1.

Orders

  • ['Declaration: The easement created by dealing number 8913156Y does not confer on the owner of the dominant tenement the right to park a vehicle on the right of carriageway where the vehicle can reasonably be parked wholly on the dominant tenement.' 'Amended summons otherwise dismissed.' 'Paragraph 1 of the...