Barter v Theunissen [2024] NSWSC 326

Barter v Theunissen [2024] NSWSC 326

The easements in question (right of carriageway, parking, recreation) do not confer exclusive possession or control on the dominant owners. Under the right of carriageway, the dominant owners may stop vehicles briefly for loading/unloading, but not park for extended periods; planter boxes installed by the plaintiff do not unreasonably interfere with the easement. The parking easement is restricted to parking vehicles; it does not permit storage, construction of wine cellars, or exclusive exclusion of the plaintiff from access. The recreation easement does not confer sole or exclusive use; both dominant and servient owners are entitled to use the rooftop terrace for recreation, provided...

Parties
Plaintiff: Marie Annette Barter; First Defendant: Joshua Reynold Theunissen; Second Defendant: Michelle Mei-Ling Theunissen
Jurisdiction
Australia
Judgment Date
28 March 2024
Procedural Posture
Civil / Final Judgment – Reasons Delivered, Parties to Bring in Short Minutes of Order
Outcome
Parties to bring in short minutes of order to reflect the reasons; opportunity to make submissions on costs
Legal Topics
Easements, Construction of Easements, Creation by Express Grant, Recreational Easements, Right of Carriageway, Parking Easement, Interference With Easements, Shared Use and Control, Nuisance – Use of CCTV Cameras
Land Law Equity Real Property Easements Construction of Easements Creation by Express Grant Recreational Easements Right of Carriageway +4 more

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Parties

Marie Annette Barter

Plaintiff

Joshua Reynold Theunissen

First Defendant

Michelle Mei-Ling Theunissen

Second Defendant

Procedural Posture

Civil / Final Judgment – Reasons Delivered, Parties to Bring in Short Minutes of Order

Legal Issues

  1. 1 Proper construction of three easements (right of carriageway, parking, recreation) burdening plaintiff’s land
  2. 2 Scope and limitations of dominant owners’ rights under each easement
  3. 3 Whether interference or exclusive use by either party invalidates or exceeds terms of the easements

Ratio Decidendi

The easements in question (right of carriageway, parking, recreation) do not confer exclusive possession or control on the dominant owners. Under the right of carriageway, the dominant owners may stop vehicles briefly for loading/unloading, but not park for extended periods; planter boxes installed by the plaintiff do not unreasonably interfere with the easement. The parking easement is restricted to parking vehicles; it does not permit storage, construction of wine cellars, or exclusive exclusion of the plaintiff from access. The recreation easement does not confer sole or exclusive use; both dominant and servient owners are entitled to use the rooftop terrace for recreation, provided...

Court Disposition

Parties to bring in short minutes of order to reflect the reasons; opportunity to make submissions on costs