Nirimba Developments Pty Limited v Sertari Pty Limited [2007] NSWSC 252

Nirimba Developments Pty Limited v Sertari Pty Limited [2007] NSWSC 252

The words of the right of carriageway (‘for all purposes’) are clear; there is no basis in the wording or admissible surrounding circumstances to limit the use as suggested by the defendant. Excessive use is a matter of construction of the grant, not a separate doctrine. Accordingly, the defendant is bound to give its consent to the lodgement of the development application for use of the right of carriageway, and a mandatory order should be made to that effect.

Parties
Plaintiff: Nirimba Developments Pty Limited; Defendant: Sertari Pty Limited
Jurisdiction
Australia
Judgment Date
22 March 2007
Procedural Posture
Equity Proceeding / Judgment After Hearing
Outcome
Plaintiff successful. Mandatory order requiring defendant to consent to lodgement of development application for use of right of carriageway. Costs to plaintiff.
Legal Topics
Easements, Right of Way, Construction of Easement, Development Consent
Property Law Equity Easements Right of Way Construction of Easement Development Consent

Case Brief

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Parties

Nirimba Developments Pty Limited

Plaintiff

Sertari Pty Limited

Defendant

Procedural Posture

Equity Proceeding / Judgment After Hearing

Legal Issues

  1. 1 Whether the plaintiff as proprietor of part of the dominant tenement is entitled to enforce the right of carriageway in accordance with its terms
  2. 2 Whether the true construction of the easement precludes the enforcement sought
  3. 3 Whether a mandatory order should be made requiring the defendant to consent to the lodgement of a development application for use of the right of carriageway

Ratio Decidendi

The words of the right of carriageway (‘for all purposes’) are clear; there is no basis in the wording or admissible surrounding circumstances to limit the use as suggested by the defendant. Excessive use is a matter of construction of the grant, not a separate doctrine. Accordingly, the defendant is bound to give its consent to the lodgement of the development application for use of the right of carriageway, and a mandatory order should be made to that effect.

Court Disposition

Plaintiff successful. Mandatory order requiring defendant to consent to lodgement of development application for use of right of carriageway. Costs to plaintiff.

Orders

  • Order that defendant consent to the lodgement of a development application for the use of the right of carriageway.
  • Plaintiff entitled to costs.