In brief - Written undertaking viewed as sufficient to preserve
owner's right to use easement
Recently the owner of a lot that has the benefit of a
right-of-way easement sought an injunction protecting his rights to
use the benefit. Instead of an injunction, the court ordered a
written undertaking from the owners of the land the subject of the
easement, preserving the owner's rights and interest in the
Dispute between neighbours over access through easement
Mr Norman owned a lot that had the benefit of a right-of-way
easement located on the Smiths' land.
Over time the relationship between the parties had deteriorated,
mainly due to a dispute about the use of and access through the
easement connecting the properties. Mr Norman alleged that the
Smiths had denied him access to the easement and obstructed his
access to his lot through the easement on various occasions.
Owner seeks injunction restraining neighbours from obstructing
access to easement
Given the state of the relationship of the parties, counsel for
Mr Norman submitted that:
Several orders should be made, including a declaration that Mr
Norman is entitled to exercise a right of way over the easement,
and that an injunction be granted restraining the Smiths from
obstructing access to or denying entry onto the easement
An injunction ordered by the court, rather than an undertaking
from the Smiths, was necessary
Payment of damages to Mr Norman would not have been an adequate
remedy, given the behavior of the Smiths and that the dispute was
otherwise incapable of resolution
Court does not grant injunction despite being satisfied that
nuisance had occurred
The court noted:
The jurisdiction of the court to make a declaration is a wide
one. However, there must be some real question in issue and a
person who has a real interest in opposing the declaration sought.
In the present case there was no dispute about the existence of the
easement, or its use and benefit. Therefore, there was no utility
in the court making a declaration.
The Smiths were bound to allow Mr Norman to use the easement
area as a right of way.
The District Court has jurisdiction to grant an injunction
section 68(1)(b) of the District Court of Queensland Act 1967. However, the
court can only grant an injunction in circumstances where there is
actual, threatened, or apprehended trespass or nuisance to
Whilst the court was satisfied a nuisance had occurred, the
court declined to grant an injunction.
Undertaking seen as more practical means of protecting interest
In lieu of an injunction, the court was satisfied that an
undertaking by the Smiths would be a sufficient remedy in this
To ensure that the undertaking was capable of being enforced,
the court stated that the undertaking should be made personally and
jointly; have clear and unambiguous terms; and be capable of being
performed at the time of its making.
The court ultimately decided that an undertaking was a
sufficient remedy and a more practical means of ensuring that Mr
Norman's rights and interest in the easement were protected, as
opposed to the making of a declaration and granting an
The court acknowledged that it did have the jurisdiction to
grant an injunction as sought in the originating application and
would have so ordered, but for the offer of an undertaking by the
Smiths. On this basis the court was of the view that Mr
Norman's application had been successful. The Smiths were
ordered to pay Mr Norman's costs of and incidental to the
proceeding, including reserved costs.
The court noted that an undertaking would amount to an
enforceable obligation, a breach of which would entitle the court,
on application, to grant an injunction in the future.
Court will not automatically grant injunction merely because
one is sought
An easement is usually registered on title, and will therefore
bind any future owners of the lots both subject to and benefiting
from the easement. It is important to ensure an easement is drafted
in clear terms and does not contain any provision that may
ultimately prove problematic once land ownership changes.
This case highlights that the court will not automatically grant
an injunction merely because one is sought. The court will consider
the appropriate remedy (if any) depending on the specifics of each
In this instance, an undertaking from the Smiths will require Mr
Norman to take future court action if the Smiths breach the terms
of their undertaking. It is likely that such future action would,
if successful, result in a costs order against the Smiths.
Many retail leases include a covenant to trade, requiring the tenant to open the premises for trade during certain hours.
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