Van Brugge & Anor v Hare & Anor [2011] NSWSC 1640

Van Brugge & Anor v Hare & Anor [2011] NSWSC 1640

The plaintiffs' easement rights should be declared as a right to reasonable use of the inclinator, without adding a requirement of necessity, because the common law does not require a dominant tenement owner to justify use of an easement by showing necessity. The parties' desired practical regime should bind only the parties and should not amend the registered easement. The defendants' proposed notice-and-opportunity proviso would impose restrictions more onerous than the plaintiffs' common law rights and was refused. Payment enforcement should be achieved by expert determination creating an immediately payable debt charged in equity upon the debtor's land, rather than by suspending...

Jurisdiction
Australia
Judgment Date
20 December 2011
Procedural Posture
Consequential Orders / Second Judgment Settling Final Orders After Principal Judgment on Easement Rights
Outcome
Declaration made as sought by the plaintiffs; regime for co-operative use of the inclinator settled; defendants ordered to pay the plaintiffs' costs up to the principal judgment, with each party to bear own costs thereafter.
Legal Topics
['torrens Title' 'easement' 'dominant and Servient Tenements' 'use and Upkeep of Inclinator' 'injunction' 'costs' 'dispute Resolution']
['real Property' 'equity' 'civil Procedure'] ['torrens Title' 'easement' 'dominant and Servient Tenements' 'use and Upkeep of Inclinator' 'injunction' 'costs' 'dispute Resolution']

Case Brief

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Procedural Posture

Consequential Orders / Second Judgment Settling Final Orders After Principal Judgment on Easement Rights

Legal Issues

  1. 1 ["What form of declaration should be made concerning the plaintiffs' right to use the inclinator under Easement B." 'What arrangements should govern servicing, maintenance, repair, renewal, improvement and operating costs of the inclinator.' 'How past outstanding maintenance and repair costs should be resolved.' 'What costs orders should be made.' 'Whether the agreed regime should bind only the parties rather than amend the registered form of Easement B.' "Whether the defendants' proposed proviso requiring notice and an opportunity for defendants to perform works should be included." 'How payment obligations under the regime should be enforced.']

Ratio Decidendi

The plaintiffs' easement rights should be declared as a right to reasonable use of the inclinator, without adding a requirement of necessity, because the common law does not require a dominant tenement owner to justify use of an easement by showing necessity. The parties' desired practical regime should bind only the parties and should not amend the registered easement. The defendants' proposed notice-and-opportunity proviso would impose restrictions more onerous than the plaintiffs' common law rights and was refused. Payment enforcement should be achieved by expert determination creating an immediately payable debt charged in equity upon the debtor's land, rather than by suspending...

Court Disposition

Declaration made as sought by the plaintiffs; regime for co-operative use of the inclinator settled; defendants ordered to pay the plaintiffs' costs up to the principal judgment, with each party to bear own costs thereafter.

Orders

  • ['Declares that the right of way and easement for services marked "B" on DP 708511 confers upon the plaintiffs, their employees, agents, contractors and invitees, the right to reasonable use of the inclinator constructed on the right of way.' 'Orders that the defendants by themselves, their employees or agents, be...