Tomara Holdings Pty Limited v Pongrass [2002] NSWSC 195

Tomara Holdings Pty Limited v Pongrass [2002] NSWSC 195

The right of carriageway was not obsolete and should not be modified because, properly construed, it included the ability to drive onto the right of way and stop for loading or unloading goods and passengers connected with 16 Pearce Street, that use had continuing utility and had been exercised from time to time, and no physical change had made that use impossible or incapable of remedy. Immediate mandatory injunctive relief requiring demolition or alteration of the wall and gate to permit rear parking was refused as a matter of discretion because development consent had not been obtained, such use had not previously occurred, the plaintiff had recently consented to the wall's...

Jurisdiction
Australia
Judgment Date
20 March 2002
Procedural Posture
Equity Proceedings Concerning Real Property Easements, a S 89 Conveyancing Act 1919 Cross Claim, and Mandatory Injunctive Relief / Judgment After Hearing
Outcome
Modification or partial extinguishment of the right of way refused; mandatory injunction to remove the wall or alter the gate for parking refused at this stage; mandatory relief to facilitate operation of the gate granted.
Legal Topics
['easements' 'rights of Way' 'right of Carriageway' 'obsolete Easements' 'modification or Extinguishment Under S 89 Conveyancing Act 1919' 'mandatory Injunctions' 'parking, Stopping, Loading and Unloading on a Right of Way' 'development Consent']
['real Property' 'equity'] ['easements' 'rights of Way' 'right of Carriageway' 'obsolete Easements' 'modification or Extinguishment Under S 89 Conveyancing Act 1919' 'mandatory Injunctions' 'parking, Stopping, Loading and Unloading on a Right of Way' 'development Consent']

Case Brief

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Procedural Posture

Equity Proceedings Concerning Real Property Easements, a S 89 Conveyancing Act 1919 Cross Claim, and Mandatory Injunctive Relief / Judgment After Hearing

Legal Issues

  1. 1 ['Whether the right of carriageway in favour of 16 Pearce Street should be modified by reducing it to a right of foot way only on the basis that vehicular rights were obsolete.' 'Whether the right of way included an ancillary right to stop vehicles on the right of way for loading or unloading goods or passengers.' 'Whether mandatory injunctive relief should be granted requiring removal or alteration of the gate and part of the masonry boundary wall to facilitate vehicular access to the rear of 16 Pearce Street for parking.' 'Whether the defendants should be required to facilitate mechanical access through the gate for occupants of 16 Pearce Street.']

Ratio Decidendi

The right of carriageway was not obsolete and should not be modified because, properly construed, it included the ability to drive onto the right of way and stop for loading or unloading goods and passengers connected with 16 Pearce Street, that use had continuing utility and had been exercised from time to time, and no physical change had made that use impossible or incapable of remedy. Immediate mandatory injunctive relief requiring demolition or alteration of the wall and gate to permit rear parking was refused as a matter of discretion because development consent had not been obtained, such use had not previously occurred, the plaintiff had recently consented to the wall's...

Court Disposition

Modification or partial extinguishment of the right of way refused; mandatory injunction to remove the wall or alter the gate for parking refused at this stage; mandatory relief to facilitate operation of the gate granted.

Orders

  • ["The defendants' cross-claim for modification of the right of way failed." 'Mandatory injunctive relief for demolition of part of the wall and removal or alteration of the gate to facilitate access to the rear of 16 Pearce Street for parking was refused at this stage.' 'An order will be made to permit the plaintiff...