Anderson v Pender [2002] NSWSC 1005

Anderson v Pender [2002] NSWSC 1005

The fence completely denied the dominant owner any use of the right of carriageway. Properly construed, the easement entitled the plaintiff to use the site of the easement to reach any part of lot 25 and to cross the northern boundary of the easement at any point. Because removal of the fence was the only practical way for those rights to be enjoyed, a mandatory injunction was appropriate. The defendants' offers did not include costs and were without admissions, so the plaintiff was justified in rejecting them and was entitled to costs.

Jurisdiction
Australia
Judgment Date
18 October 2002
Procedural Posture
Equity Proceedings Concerning Real Property Easement and Injunctions / Judgment on Summons
Outcome
Injunctions granted; defendants ordered to pay the plaintiff's costs.
Legal Topics
['easements' 'right of Carriageway' 'interference With Easement' 'nuisance' 'mandatory Injunction' 'costs']
['real Property' 'equity'] ['easements' 'right of Carriageway' 'interference With Easement' 'nuisance' 'mandatory Injunction' 'costs']

Case Brief

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Procedural Posture

Equity Proceedings Concerning Real Property Easement and Injunctions / Judgment on Summons

Legal Issues

  1. 1 ['Whether the paling fence erected along the boundary between lots 25 and 26 obstructed or impeded the right of carriageway created by registration of Strata Plan 22145.' 'Whether the plaintiff was entitled to a mandatory injunction requiring removal of the part of the fence impeding the right of carriageway.' "Whether the plaintiff should be deprived of costs because she rejected the defendants' settlement offers."]

Ratio Decidendi

The fence completely denied the dominant owner any use of the right of carriageway. Properly construed, the easement entitled the plaintiff to use the site of the easement to reach any part of lot 25 and to cross the northern boundary of the easement at any point. Because removal of the fence was the only practical way for those rights to be enjoyed, a mandatory injunction was appropriate. The defendants' offers did not include costs and were without admissions, so the plaintiff was justified in rejecting them and was entitled to costs.

Court Disposition

Injunctions granted; defendants ordered to pay the plaintiff's costs.

Orders

  • ['The defendants and each of them be restrained from obstructing or in any way impeding the right of carriageway created by the registration of Strata Plan 22145 in favour of premises known as 13 Church Street, Greenwell Point being Lot 25 of Section B in Deposited Plan 24386 and the whole of the land comprised in...