Draydon & Anor v Mikelsons [2009] QSC 420

SUPREME COURT OF QUEENSLAND CITATION: Draydon & Anor v Mikelsons [2009] QSC 420 PARTIES: EDWARD DRAYDON & MARGOT DRAYDON (plaintiffs/respondents) v HARRY MIKELSONS (defendant/applicant) FILE NO/S: BS 11820 of 2009 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 18 December 2009 DELIVERED AT: Brisbane HEARING DATE: 18 December 2009 JUDGE: Chief Justice ORDERS: 1. that the claim for the declaration in paragraph one of the claim filed 21 October 2009 be refused. 2. that the plaintiffs pay the defendant’s costs of and incidental to the defendant’s application filed 19 November 2009, to be assessed on the standard basis. CATCHWORDS: PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – SUMMARY JUDGMENT – defendant’s application for summary judgment – whether easement robs servient tenants of the use of their land Property Law Act 1974 s 181 Uniform Civil Procedure Rules 1999 r 293 Bolton Properties Pty Ltd v J K Investments (Australia) Pty Ltd [2009] QCA 135, cited Brydall Pty Ltd v Owners of Strata Plan 66794 (2009) 14 BPR 26, cited Mercantile General Life Reassurance Co v Permanent Trustee Australia Ltd (1988) 4 BPR 9534, cited Moncrieff v Jamieson (2007) 1 WLR 2620, considered Weigall v Toman [2008] 1 Qd R 192, considered COUNSEL: M D Martin for the plaintiff R I M Lilley SC for the defendant -- 1 of 6 -- 2 SOLICITORS: DLA Phillips Fox for the plaintiff Conroy & Associates for the defendant [1] CHIEF JUSTICE: The plaintiffs, Mr and Mrs Draydon, have commenced a proceeding claiming a declaration that an easement over part of their property (lot 21), in favour of the owner of lot 22, who is the defendant Mr Mikelsons, is invalid. The basis that the alleged invalidity is that because of the existence of the easement, the Draydons have “lost the reasonable use of their land”. Alternatively they seek an order under s 181 of the Property Law Act 1974 modifying the easement so that it “does not grant exclusive use thereof to the defendant”. Mr Mikelsons seeks an order, by application filed 19 November 2009, under Rule 293 of the Uniform Civil Procedure Rules 1999, for judgment in his favour in relation to the Draydons’ claim for that declaration. [2] To enter judgment summarily under that provision, the court must first be satisfied that the plaintiffs have no real prospect of succeeding in securing that declaration, and that there is no need for a trial in respect of that claim. The approach to be adopted on such an application was recently considered by the Court of Appeal in Bolton Properties Pty Ltd v J K Investments (Australia) Pty Ltd [2009] QCA 135. [3] The facts are not relevantly in dispute. But for the easement, Mr Mikelsons’ lot 22 is landlocked. The easement, which is registered, covers an eight metre wide strip down the edge of the Draydons’ property (lot 21), connecting the Mikelsons land to Herron Road. The area of lot 21 is one hectare, and the area of the easement covers 8,911 square metres of that. Lot 21 has direct access to Herron Road, over 66.8 metres of frontage (excluding the width of the easement). A three metre wide -- 2 of 6 -- 3 bitumen strip has been constructed along the length of the easement. The Draydons use a driveway within their lot 21 providing direct access to Herron Road. [4] The easement was created at a time when Mr Mikelsons owned all of the land comprising both lots. As owner of the landlocked lot 21, he granted the easement over lot 21 in favour of lot 22. The easement was registered. The Draydons subsequently purchased lot 21 from Mr Mikelsons. A copy of the easement was attached to the contract, and a special condition provided: “The parties have agreed and the Buyer hereby acknowledges that Easement No 706809731, which is named as “Title Encumbrances” in the Reference Schedule, comprises a driveway which is for the exclusive use and benefit of the Seller as the registered proprietor of Lot 22 on SP 150150, a copy of this Easement is annexed to the Contract.” [5] The material terms of the easement are as follows: “1. For the purpose of this schedule: (a) the Grantor means the owner for the time being of Lot 21 in proposed plan cancelling Lot 4 on RP 128724 and their successors and assigns. (b) the Grantee means the owner for the time being of proposed Lot 22 cancelling Lot 4 on RP 128724 and their successors and assigns. 2. In consideration of the sum of ONE DOLLAR ($1,00) paid by the Grantee to the Grantor (the receipt of which the Grantor hereby acknowledges) the Grantor hereby grants to the Grantee an excusive [sic] use for the purposes of access and supply of services, including but not limited to power, water, telephone, computer and any other services reasonably required by the Grantee or persons authorised by the Grantee and persons occupying the residences situated on the Dominant Tenement to pass along the Servient Tenement on foot and with or without motor vehicles laden or unladen common [sic] as well as the right to lay such services as is set out in this clause exclusively for the benefit of the Grantee and all other persons entitled to [sic] the Grantee for the time being entitled to a like right at all times hereafter whether by day or night. -- 3 of 6 -- 4 3. The Grantee and the Grantor covenant that for the duration of this easement, and if [sic] it a condition of this easement that: 3.1 the Grantee will cause as little disturbance to the Grantor as shall be reasonably possible; 3.2 the Grantee will at their cost promptly keep and maintain the area of their easement in good order and condition, fair wear and tear accepted without contribution by the Grantor; 3.3 the Grantor will use their best endeavours to ensure that the exclusivity of the easement is enjoyed by the Grantee to the exclusion of the Grantor and his successors and assigns. 3.4 the costs of maintaining and repairing the Servient Tenement or any improvements [sic] the Servient Tenement (e.g. lighting or fencing) shall be paid exclusively by the Grantee (other than Rates and Land Tax which shall be borne by the Grantor) [sic] 3.5 the Grantee will in addition to maintaining the easement at his costs, and being responsible for the maintenance of the easement, shall in addition be required to landscape and erect thereon such lawn, trees, ornamental shrubs and other landscaping as in the sole discretion of the Grantee is reasonably required to maintain the character of the easement.” [6] M Wilson J comprehensively and helpfully discussed, in Weigall v Toman [2008] 1 Qd R 192, the factors which bear on the determination whether an easement robs the servient owner of “reasonable use of his land”. One’s focus should rest on whether the effect of the lease is to rob the grantor “of the reasonable use of the servient tenement as a whole” (para 25). Her Honour gives examples of cases where the grant of exclusive use for particular purposes, such as storage and the parking of vehicles, has been held not to have that consequence. One may add reference to Brydall Pty Ltd v Owners of Strata Plan 66794 (2009) 14 BPR 26, 831 (para 18 esp) and Mercantile General Life Reassurance Co v Permanent Trustee Australia Ltd (1988) 4 BPR 9534, 9542. Moncrieff v Jamieson (2007) 1 WLR 2620 -- 4 of 6 -- 5 suggests that one should usefully consider what uses the servient owner can make of the land covered by the easement notwithstanding the rights accorded the dominant owner. [7] The aggregation of the following circumstances is significant in the present case: 1. the area of the easement amounts for approximately only one-tenth of the area of lot 21, and is confined to the boundary of lot 21, not affecting the usefulness of the balance of nine-tenths of the lot; 2. without the easement, lot 22 would have no access to Herron Road, whether for pedestrians, vehicles or services; 3. lot 21, on the other hand, has ample direct access to Herron Road; 4. Mr Mikelsons has to bear the expense of maintaining the easement and landscaping it; and 5. there are uses the Draydons may make of the area of the easement notwithstanding Mr Mikelsons’ exclusive rights, such as parking vehicles by the border (allowing a vehicle to pass), grazing animals, growing crops or plants or shrubs, planting hedges and trees etc. [8] Under cl 2 of the easement, the grantee gains “an exclusive use for the purposes of access and supply of services…”. Clause 3.3 does not enlarge that right: it merely obliges the grantor to ensure that the grantee enjoys the right. But the grantee’s right does not absorb the whole of the easement, because of cl 3.1, which obliges the grantee to “cause as little disturbance to the grantor as shall be reasonably possible”. Accordingly, as to access for example, the grantee might reasonably expect the exclusive use of the bitumen strip, but not the grassed areas to the sides (evident in ex HM2 to the affidavit of Harry Mikelsons filed 26 November 2009). -- 5 of 6 -- 6 [9] For these reasons, the conclusion that the easement robs the Draydons of their reasonable use of lot 21 is not sustainable. I do not consider that the Draydons have any real prospect of establishing the basis put forward for their contention. The defendant is therefore entitled to the entry of judgment summarily against the plaintiffs, in respect of the relief claimed in paragraph one of the claim. [10] There will be orders: 1. that the claim for the declaration in paragraph one of the claim filed 21 October 2009 be refused; 2. that the plaintiffs pay the defendant’s costs of and incidental to the defendant’s application filed 19 November 2009, to be assessed on the standard basis. -- 6 of 6 --