Shelbina Pty Ltd v Richards [2009] NSWSC 1449

Shelbina Pty Ltd v Richards [2009] NSWSC 1449

The defendants' rights under the western easement were to pass to and from and along the easement for the benefit of Lot 11, with entry and exit at the ends of the right of way. The easement did not expressly or impliedly permit entry or exit at the Transgrid gate to access, or provide access from, the Taylor property, which was not benefited by the easement. The later existence and convenience of the Transgrid gate could not control the construction of the western easement. The plaintiff was therefore entitled to restrain the defendants from using the gate and deviating from the right of carriageway to cross Lot 13 except at the proper entry and exit points.

Jurisdiction
Australia
Judgment Date
15 December 2009
Procedural Posture
Real Property Proceeding Concerning Easements and Injunctive Relief / Principal Ex Tempore Judgment
Outcome
Plaintiff succeeded; injunctive relief granted, with costs to be heard.
Legal Topics
['easements' 'rights of Carriageway' 'construction of Easements' 'dominant and Servient Tenements' 'injunctive Relief']
['real Property' 'equity'] ['easements' 'rights of Carriageway' 'construction of Easements' 'dominant and Servient Tenements' 'injunctive Relief']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Real Property Proceeding Concerning Easements and Injunctive Relief / Principal Ex Tempore Judgment

Legal Issues

  1. 1 ['Whether the owners of the dominant tenement were entitled to use the western right of carriageway to enter or exit at a point along its length in order to access the Taylor property, which was not benefited by the easement.' "Whether the defendants could authorise the Taylors to use the western easement to access the defendants' land." 'Whether the plaintiff was entitled to restrain the defendants from opening or interfering with the Transgrid gate and from deviating from the right of carriageway.']

Ratio Decidendi

The defendants' rights under the western easement were to pass to and from and along the easement for the benefit of Lot 11, with entry and exit at the ends of the right of way. The easement did not expressly or impliedly permit entry or exit at the Transgrid gate to access, or provide access from, the Taylor property, which was not benefited by the easement. The later existence and convenience of the Transgrid gate could not control the construction of the western easement. The plaintiff was therefore entitled to restrain the defendants from using the gate and deviating from the right of carriageway to cross Lot 13 except at the proper entry and exit points.

Court Disposition

Plaintiff succeeded; injunctive relief granted, with costs to be heard.

Orders

  • ['Order that the defendants be restrained from opening or otherwise interfering with the gate between Lot 13 in DP 708538 and Lot 12 in DP 878784.' "Order that the defendants their servants or agents, invitees or licensees be restrained from deviating from the right of carriageway 20m wide created by DP 708538 by...