Twomey v Blanch [2008] NSWSC 641

Twomey v Blanch [2008] NSWSC 641

There are serious issues to be tried concerning the fence and further excavation work. The balance of convenience favours preservation of the status quo until final hearing as the dispute about the carriageway has been ongoing, and injunctive relief will maintain the current situation and minimise harm.

Parties
Plaintiff: Raymond William Twomey; First Defendant: Jason Dudley Blanch; Second Defendant: Clarence Dudley Blanch
Jurisdiction
Australia
Judgment Date
20 June 2008
Procedural Posture
Injunction Application / Interlocutory (ex Tempore Judgment on Extension of Injunction)
Outcome
Injunctions extended until further order. Costs in the cause.
Legal Topics
Injunctions, Right of Carriageway, Balance of Convenience, Interlocutory Relief
Property Law Civil Procedure Injunctions Right of Carriageway Balance of Convenience Interlocutory Relief

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Parties

Raymond William Twomey

Plaintiff

Jason Dudley Blanch

First Defendant

Clarence Dudley Blanch

Second Defendant

Procedural Posture

Injunction Application / Interlocutory (ex Tempore Judgment on Extension of Injunction)

Legal Issues

  1. 1 Whether interlocutory injunction restraining excavation and fence erection on right of carriageway should be continued
  2. 2 Whether serious issues are to be tried
  3. 3 Whether balance of convenience favours continuing injunctive relief

Ratio Decidendi

There are serious issues to be tried concerning the fence and further excavation work. The balance of convenience favours preservation of the status quo until final hearing as the dispute about the carriageway has been ongoing, and injunctive relief will maintain the current situation and minimise harm.

Court Disposition

Injunctions extended until further order. Costs in the cause.

Orders

  • Defendants restrained until further order from carrying out any excavation work on the right of carriageway benefiting Plaintiff's land (except as reasonably necessary to inspect the underground fuel tank on Second Defendant's property).
  • Defendants restrained from erecting a fence between the plaintiff's property and the right of carriageway.