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  • Unreported Judgment

Franciskovic v G & J Tenni Pty Ltd

 

[2020] QSC 215

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

Franciskovic v G & J Tenni Pty Ltd & Anor [2020] QSC 215

PARTIES:

JOSIP FRANCISKOVIC

(applicant)

v

G & J TENNI PTY LTD

ACN 070 030 947

(first respondent)

RICHARD ANTHONY DONNELLY

(second respondent)

FILE NO/S:

SC 245/20

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Cairns

DELIVERED EX TEMPORE ON:

15 May 2020

DELIVERED AT:

Cairns

HEARING DATE:

15 May 2020

JUDGE:

Henry J

ORDER:

  1. Pursuant to s 181 of the Property Law Act 1974 (Qld) easement number 601419319, which burdens Lot 1 of RP 703159 in favour of the First Respondent’s property at Lot 5 on SP 1050245 title reference 50488709, be wholly extinguished.
  2. With the consent of the Second Respondent and pursuant to s 181 of the Property Law Act 1974 (Qld) easement number 602653167, which burdens Lot 1 of RP 703158 title reference 20330025, be wholly extinguished.
  3. No order as to costs.

CATCHWORDS:

REAL PROPERTY – EASEMENTS – EASEMENTS GENERALLY –ABANDONMENT, SUSPENSION, EXTINGUISHMENT OR MODIFICATION – EXTINGUISHMENT – STATUTORY – where an easement dating back to the 1920s ran along three properties, providing access from a main street to the third property – where subsequently another road was laid providing access to all three properties – where there is no physical sign of the easement anymore – where the easement had been abandoned since at least 1984 – where the nature of the neighbourhood has changed – whether the easement has been “abandoned” – whether the easement is “obsolete”

Property Law Act 1974 (Qld), s 181(1)(a), s 181(1)(c), s 181(2), s 181(4)

COUNSEL:

B Bilic for the applicant

No appearance for the first respondent

The second respondent appeared on his own behalf

SOLICITORS:

O’Reilly Stevens Lawyers for the applicant

No appearance for the first respondent

The second respondent appeared on his own behalf

HIS HONOUR: This is an application for the extinguishment of an easement in respect of two properties neighbouring the applicant’s property. 

The easement appears to date back to the 1920s.  The properties in question are located in the vicinity of Kamerunga Road in Ernest Street at Redlynch, not far from the train station.  Ernest Street did not exist at the time of the creation of the easement.  This had the consequence that access to the properties now held by the first and second respondents was achieved from off what is now Kamerunga Road along a thin laneway running at the side fence line of the applicant’s property, extending directly along the now rear fence line of the second respondent’s property and reaching what is now the rear corner of the first respondent’s property.

The easement evidently served as a laneway linking what was once at the applicant’s property, a bakery, with what was once at the first respondent’s property, a cabinetmaker’s.  With the march of time, those businesses no longer exist.  The applicant’s property and the second respondent’s property are domestic residences.  The first respondent’s property is an automotive business.  It appears clear that, with progress, Ernest Street was installed and the use of the horse and buggy-width laneway, the subject of the present easement, dissipated to the point of non-use decades ago.  The presence of Ernest Street readily explains why that occurred, for the historical owners of the first and second respondents’ property could access their properties via Ernest Street, a considerably wider and properly paved means of so doing, in comparison to the easement.

There is no physical sign of the existence of the easement at the properties anymore.  Indeed, many obstacles would stand in the way of an attempted use of it, not merely including fencing, but also buildings, trees and the besser block wall of the first respondent’s property.  The respondents have been properly served with today’s application.  The second respondent, Mr Donnelly, has appeared.  No appearance has been entered for G & J Tenni Pty Ltd, the first respondent, and, I infer, the owners of the automotive business located at their property.  Nor have they responded to correspondence by which the applicant has attempted to address the question of them being compensated for the loss of the easement.

I have been informed that the topic of compensation in respect of the loss of the easement, to the extent Mr Donnelly, the second respondent, has an interest in it, has been the subject of negotiation and agreement between the parties.  This has the consequence that Mr Donnelly now consents to my ordering the extinguishment of the easement insofar as it relates to his property, without the need for me to make an order as to compensation. 

Section 181(1)(a), (b) and (c) Property Law Act 1974 (Qld) empowers the court to extinguish easements deemed obsolete, serving no practical benefit or abandoned.  The present facts suggest any of those considerations apply here, with the circumstances likely being characterised most accurately as meeting s 181(1)(c), abandonment.  I draw that conclusion because, to adopt the language of the subsection, the players have “by their acts or omissions … abandoned the easement wholly”.

It is clear on the facts that the abandonment occurred decades ago, and at very least since 1984, the year to which the present applicant’s direct knowledge on the topic extends. 

The terms of s 181 require me to take into account “the town plan and any declared or ascertainable pattern of local government for the grant or refusal of consent, permission or approval to use any land or erect or use any building or other structure in the relevant area, as well as the period at which and context in which the easement … was created … and any other material circumstance.”  The Cairns Plan sheds no material light on the present issue and Council has written to advise it has no objection to the removal of the easements.

The affidavit evidence makes it plain the nature of the neighbourhood in decades gone by is different than now and that use of the easement ceased years ago.  The easement is, to apply the meaning of “obsolete”, not relevant to the circumstances presently pertaining, and thus likely also meets s 181(1)(a).  In any event, it is sufficient to record, for the reasons I have already given, that I am well-satisfied there has been an abandonment of the easement. 

Section 181(4) provides that in extinguishing an easement the court may direct the relevant applicant to pay to the person entitled to the benefit of the easement such sum by way of consideration as the court thinks it just to award.  Insofar as is relevant here, that would be a sum to make up for any loss or disadvantage suffered in consequence of the extinguishment.  On the information before me, there is no evidence of any loss or disadvantage which would be suffered by either of the respondents in the event of me granting the orders sought. 

In any event, as earlier mentioned, the second respondent does not seek an order for compensation.  Doubtless, that flows in part from whatever agreements outside court have been reached between the second respondent and the applicant. 

The first respondent, having not appeared and having laid on no evidence, has left me in a position where, on the evidence as it stands, there is no evidence of any loss or disadvantage suffered in consequence of the extinguishment of what is an abandoned easement.  In the circumstances, I do not propose to direct the applicant pay any compensation to the first respondent.  In circumstances such as the present, the Uniform Civil Procedure Rules 1999 would permit the first respondent, not having been present at the time of the making of these orders, to attempt to come back before me.  Time will tell whether such an attempt is made, though it would necessarily need to involve a good explanation for the absence of any evidence having been filed relevant to the topic of compensation, or, indeed, relevant to the application at all to date. 

Before me are amended draft orders by which I order the extinguishment of the easement as it applies to each of the properties and make no order as to costs.  Those orders are made with the consent of the only present parties, namely the applicant and second respondent. 

I order as per the amended draft order signed by me and placed with the papers. 

 
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Editorial Notes

  • Published Case Name:

    Franciskovic v G & J Tenni Pty Ltd & Anor

  • Shortened Case Name:

    Franciskovic v G & J Tenni Pty Ltd

  • MNC:

    [2020] QSC 215

  • Court:

    QSC

  • Judge(s):

    Henry J

  • Date:

    15 May 2020

Litigation History

No Litigation History

Appeal Status

No Status