Jamison 17 Pty Ltd v Jaynick Pty Ltd & Anor

1. [1]

   The plaintiff, Jamison 17 Pty Ltd (Jamison), is the registered proprietor of land at XXX Bay Road, Taren Point, NSW, contained in Folio Identifier C/406729 (Lot C).

2. [2]

   The first and third defendants, Jaynick Pty Ltd (Jaynick) and Nicholas Ames respectively (together, the Defendants), operate a motorboat sales, service and repair business, known as Neptune Marine, from the adjoining property at XXX Bay Road, Taren Point, NSW, contained in Folio Identifier B/406729 (Lot B).

3. [3]

   The disputes between the parties concern a right of carriageway that burdens Jamison’s Lot C and benefits Lot B and other land located at XXX Bay Road, Taren Point, NSW, contained in Folio Identifier A/406729 (Lot A).

4. [4]

   The right of carriageway is a driveway that runs from Bay Road along Lot C in an “L” configuration and provides vehicle access to the rear of Lots B and C.

5. [5]

   In these proceedings, Jamison claims that the Defendants have parked boats and stored equipment on the right of carriageway and encroached on areas of Jamison’s land outside the right of carriageway. Jamison seeks relief restraining the alleged excessive use, the transportation of boats over a certain size and the encroachment and interference with bollards and barriers on its land.

6. [6]

   The Defendants accept that some parking of boats has been excessive but deny the other claims and contest the scope of the injunctive relief sought by Jamison.

Background

1. [7]

   Jamison became the registered proprietor of Lot C on 20 September 2019. It leases Lot C to a wire business known as Phantom Manufacturing Co Pty Ltd.

2. [8]

   The registered proprietors of Lot B are Joseph and Nancy Amendolia who, together with Mr Ames, are the directors of Jaynick.

3. [9]

   Jaynick and Mr Ames use the right of carriageway as part of the business operations of Neptune Marine including for the purposes of moving boats onto trailers and other heavy equipment to the rear of Lot B.

4. [10]

   The right of carriageway was created on 21 August 1959 upon registration of Transfer H292514 (Transfer) by reference to the “Miscellaneous Plan of Subdivision Registered No. 106729”. The Transfer referred to the right of carriageway as the land shown in the plan of subdivision.

5. [11]

   It is common ground that, by virtue of s 181A(1) of the Conveyancing Act 1919 (NSW), the terms of the right of carriageway are those contained in Part 1 of Sch 8 of that Act, which provides:

6. [12]

   The right of carriageway is recorded on the certificates of title and title searches of Lots B and C.

7. [13]

   The right of carriageway runs north to south from Bay Road along the western boundary of Lot C and then turns (on a 90 degree angle) to run east along the southern boundary of Lot C, behind the rear of Lot B, to the boundary of Lot A.

8. [14]

   The state and location of the right of carriageway, Lots B and C and various structures located on or near the Lots are depicted on various survey plans, CCTV footage and photographs in evidence, some of which are set out below.

9. [15]

   From the Walton Survey Plan and the photographs at [14] above, it is evident that:

10. [16]

    The issues that led to these proceedings arose in late 2019, not long after Jamison became the registered proprietor of Lot C.

11. [17]

    Jamison retained solicitors who, on 3 December 2019, wrote to Neptune Marine and Mr and Mrs Amendolia complaining about the storage of boats, cars and other goods on the right of carriageway and requesting that they keep it free from obstruction.

12. [18]

    It is not necessary to detail the solicitors’ correspondence that ensued other than to note that complaints were also made about damage to a bollard on and trespass to Jamison’s land which were also directed to the occupier of Lot A, Bridge Auto Repairs Pty Ltd (Bridge Auto).

13. [19]

    It was during this period, sometime in mid to late 2020, that Jamison installed six CCTV cameras on Lot C, the Guard Rail and three metal bollards to the concrete adjacent to the northern boundary of the right of carriageway.

14. [20]

    On 11 November 2020, Jamison commenced these proceedings against Jaynick and Bridge Auto by Summons filed on an urgent basis that day.

15. [21]

    The Summons sought interim relief to prevent the storage of boats and other items on the right of carriageway, and final injunctive relief to keep the right of carriageway free from obstruction or equitable compensation and damages. The evidence filed in support of the Summons was an affidavit from William Nakos, a director and secretary of Jamison, which exhibited CCTV footage and images captured from that footage.

16. [22]

    On 19 November 2020, Slattery J made interlocutory orders by consent (19 Nov Orders) that resolved Jamison’s claims for interim relief against Jaynick in the following terms:

17. [23]

    On 19 February 2021, the proceedings as they related to Bridge Auto were resolved by consent.

18. [24]

    By an Amended Notice of Motion filed on 2 July 2021, Jamison sought orders that the Defendants be found guilty of contempt for failing to comply with the 19 Nov Orders. The application was not pursued for reasons that are not necessary to detail and the motion was dismissed with costs.

19. [25]

    On 12 November 2021, Jamison filed a Further Amended Summons (FAS) that joined Mr Ames to the proceedings and amended the terms of the final relief to include an injunction which would prevent the Defendants from transporting boats on the right of carriageway through the use of a forklift.

20. [26]

    On 1 December 2021, the Defendants filed a response to the FAS in which they denied that Jamison was entitled to final relief on the basis that an injunction would reduce the rights otherwise enjoyed under the right of carriageway, there was no excessive use, Jaynick’s use of the right of carriageway did not unreasonably interfere with Jamison’s rights and Jamison had not suffered any loss such that it was not entitled to compensation or damages.

21. [27]

    On 12 May 2023, Jamison was granted leave to file a Second Further Amended Summons (SFAS) that included further injunctive relief preventing the Defendants from using boats over a particular size on the right of carriageway, entering on any part of Lot C outside the right of carriageway and damaging or colliding with any bollard or barrier installed on Lot C outside the right of carriageway.

The relief and issues for determination

1. [28]

   Jamison opened its case and adduced evidence at the hearing on the basis that it sought all the injunctive relief in the SFAS but not equitable compensation or damages.

2. [29]

   Jamison’s position was that the evidence establishes that the Defendants had systemically disregarded the limits conferred by and excessively used the right of carriageway by parking and leaving boats and other goods on the right of carriageway, the use had encroached on areas outside the right of carriageway to the rear of Jamison’s factory warehouse and damaged its property, and the pushing and pulling of boats on a trailer with a forklift was unsafe and endangered other users of the right of carriageway. It claimed that injunctive relief was warranted, particularly as there had been breaches of the 19 Nov Orders.

3. [30]

   The Defendants’ opening submissions maintained that the SFAS should be dismissed with costs. They disputed that the use of the forklift was unsafe and contended that Jamison’s claims overreached as any encroachment or damage to a bollard was trifling at most and the injunctions sought, particularly that which would prevent use of a forklift to transport boats, may have a significant impact on the Defendants’ business.

4. [31]

   By the final day of the hearing, the issues in dispute had narrowed.

5. [32]

   During closing submissions, Jamison abandoned its claim for an injunction preventing the Defendants from transporting boats using a forklift (SFAS [1(b)]), agreed that the injunctions sought at SFAS [(1)(c), (d) and (e)] should be refined and accepted that the safety and compliance issues raised by the evidence no longer formed the bases for the relief it claimed (T255.23–256.1; T329.50).

6. [33]

   The Defendants’ closing submissions acknowledged that there had been excessive use of the right of carriageway by leaving boats or other equipment on it for periods of consecutive days in the period from late 2022 to early 2023 and that some form of injunction would be appropriate.

7. [34]

   The final form of relief sought by Jamison (Final Relief) [1] is as follows (marked up against the relief sought in the SFAS):

8. [35]

   The Defendants have proffered an alternative form of injunctive relief (similar to the Final Relief at [(1)(a)]), [2] in the following terms:

9. [36]

   The Defendants otherwise maintain that the Court should not grant the Final Relief sought by Jamison.

10. [37]

    The key issues for determination are:

Evidence and witnesses

1. [38]

   Jamison read four affidavits from Mr Nakos, an affidavit from John Walton, a registered surveyor, and relied on three expert reports from Chris Palmer, a traffic engineer, and an expert report from Graham Scott Beard, a workplace health and safety consultant.

2. [39]

   The Defendants did not read any lay evidence and relied on an expert report from Craig McLaren, a traffic engineer. A joint expert report from Mr Palmer and Mr McLaren was also tendered.

3. [40]

   Mr Nakos, Mr Walton, Mr Beard, Mr Palmer and Mr McLaren were each cross-examined.

4. [41]

   Much of Mr Nakos’ evidence referred to, and the exhibits comprised, CCTV footage and photographs relating to the period from 17 November 2019 to 27 March 2023 obtained from cameras he had installed and from his iPhone camera. A chronological list of the footage and photographs relied on by Jamison was prepared and provided to the Court (MFI-1).

5. [42]

   Mr Nakos’ oral evidence explained the process by which he retrieved the CCTV footage and photographs. In cross-examination, he accepted that when he was not watching the CCTV, the location of boats that had been parked on the right of carriageway may change, for example, they may have left and come back to the same spot, and that he had not seen it (T148.46–149.4).

6. [43]

   Mr Nakos deposed that, on or about 12 June 2020, he installed the Guard Rail and safety bollards at the turn of the right of carriageway but outside that right of carriageway. The CCTV footage and photographs in evidence suggests that the Guard Rail was installed after 24 July 2020.

7. [44]

   Mr Nakos also gave evidence about Jamison’s plan to construct a new two-storey factory building on Lot C. In February 2023, Jamison submitted documentation and architectural plans in respect of the development proposal which provided for the building to be constructed on Lot C up to and adjacent to the boundaries of the right of carriageway. A complying development certificate (CDC) was issued by the building certifiers on 20 April 2023 and notice of the development was posted on the NSW Planning Portal.

8. [45]

   Mr Nakos was a generally reliable witness. No issues of credit were raised and I accept his evidence.

9. [46]

   Mr Walton’s affidavit annexed reports, survey plans and sketches that show the boundaries and location of Lots B and C, the right of carriageway and the location of the bollards at various times, and includes the Walton Survey Plan, Revision 7 Survey Plan dated 8 September 2022, Right of Carriageway Setout Sketch dated 28 September 22 (Sketch Plan) and a Final Identification Survey dated 15 March 2021.

10. [47]

    Mr Beard’s report and large parts of Mr Palmer and Mr McLaren’s reports, together with their oral evidence, addressed the safety risks and compliance matters relating to the Defendants’ use of a forklift to transport boats along the right of carriageway and safety issues more generally that had fallen away entirely or to the background by the end of the hearing and was of marginal relevance to the issues for determination.

11. [48]

    Mr Palmer and Mr McLaren were also asked to opine on the maximum dimensions (length and width) of boats that could be transported using a forklift along the right of carriageway and manoeuvre the turn at the corner of the right of carriageway without encroaching on that part of Lot C unburdened by the right of carriageway or damaging any property (real or personal).

Findings

1. [49]

   It is convenient to next set out my findings in relation to incidents on the right of carriageway about which complaint is made and form the basis of most of the relief sought by Jamison.

2. [50]

   My findings are based on a review of the CCTV footage and photographs, including MFI-1, the survey plans and Mr Nakos’ evidence. In the absence of any evidence from the Defendants, I have inferred that the boats and goods shown on the CCTV footage and photographs which are in the same location on the right of carriageway at different times and/or dates remained in situ during the period and were not moved.

3. [51]

   I am satisfied, on the balance of probabilities, of the following:

4. [52]

   I am also satisfied that the evidence shows that, on 5 May 2022, the pink bollard with the black base was not bolted to the ground and could be picked up and moved around, as demonstrated by Mr Ames during the site visit with the consultant and, since at least 28 September 2022, a yellow metal bollard has been affixed to the concrete and located on the Splay Corner (Sketch Plan; T142.4).

Consideration and determination

1. [53]

   The nature and extent of the rights conferred by an easement, such as the right of carriageway, are ascertained as a matter of construction by reference to the terms of the instrument itself without regard to extrinsic evidence other than the material in the folio, the registered (or “deposited”) plan showing the easement and the physical characteristics of both the dominant and servient tenements: Westfield Management Ltd v Perpetual Trustee Co Ltd (2007) 233 CLR 528; (2007) 239 ALR 75; [2007] HCA 45 (Westfield v Perpetual Trustee); Lowe v Kladis (2018) 19 BPR 38,599; [2018] NSWCA 130 (Lowe v Kladis) at [86]–[88]; and Sertari Pty Ltd v Nirimba Developments Pty Ltd [2008] NSW ConvR 56-200; [2007] NSWCA 324 at [15]–[16].

2. [54]

   The purposes for which the dominant owner may use a right of carriageway must also take into account the inherent nature of such a right: Lowe v Kladis at [90].

3. [55]

   The terms of the right of carriageway are set out at [11] above. They provide a right to the owners of Lot B and persons authorised by them, who include the Defendants, full and free right to go, pass and repass along the right of carriageway to and from Lot B at all times and for all purposes with or without vehicles.

4. [56]

   An easement that provides a right to “go, pass and repass” is broad but it involves some limitation of rights. While not necessarily requiring constant movement, a right to “go, pass and repass” does not expressly allow for stopping in, parking a vehicle or leaving goods on the right of carriageway: Middleton v Arthur (2002) 11 BPR 20,263; [2002] NSWSC 627 (Middleton v Arthur) at [34]; and Berryman v Sonnenschein [2008] NSWSC 213 at [19].

5. [57]

   Ancillary rights may be implied where the right is reasonably necessary for the enjoyment of the rights expressly granted: McWilliam v Hunter [2022] NSWSC 342 (McWilliam v Hunter) at [37] and the cases there cited.

6. [58]

   As Brereton J (as his Honour then was) said in Trewin v Felton (2007) 13 BPR 24,579; [2007] NSWSC 851 at [52]:

7. [59]

   In Laris v Lin (No 2) (2016) 18 BPR 35,917; [2016] NSWSC 560 at [118], Slattery J observed that the owner of the dominant tenement of a right of carriageway ordinarily has the right to halt, load and unload and stop momentarily to set down or pick up passengers but this must be de minimis use and no more, and it does not normally entitle the dominant owner to park on the way although there may be circumstances where the Court will decide otherwise, such as where there are parking bays mapped out on the plan by which the easement was granted, referring to Bulstrode v Lambert [1953] 2 All ER 728; [1953] 1 WLR 1064 at 1070 and Butler v Muddle (1995) 6 BPR 13,984 (Butler v Muddle).

8. [60]

   The use of the right of carriageway is qualified by the concept of reasonable use. The parties must exercise a degree of restraint in relation to the site, whether that is the Defendants, by exercising the rights as authorised by the dominant owner, or Jamison, by exercising ownership rights as a servient owner. Neither party may exercise rights in a way that interferes unreasonably with the enjoyment of the other’s rights: Lowe v Kladis at [105], referring to Hare v van Brugge (2013) 84 NSWLR 41; [2013] NSWCA 74 at [24]–[25]. The way in which the rights of all can be reconciled is by holding that none who are entitled to use the right of carriageway in common with others must use it excessively: Jelbert v Davis [1968] 1 All ER 1182; [1968] 1 WLR 589 at 595.

9. [61]

   On its proper construction, the right of carriageway does not include an implied or ancillary right for the owners of Lot B or the Defendants (and other authorised invitees) to park vehicles and boats and store other goods upon the right of carriageway. Such activities are not, in my view, reasonably necessary for the enjoyment of the rights granted to the owner of Lot B (and the Defendants) having regard to the purpose of the grant and the physical characteristics of the land: Butler v Muddle at 13,986–7; and Middleton v Arthur at [34].

10. [62]

    The registered plan and the physical characteristics of the parcels of land make plain that the right of carriageway is to enable vehicle access to and from Bay Road to the rear of Lot B, which is an industrial property. As Jamison submitted, it is evident that the right of carriageway was created to serve as shared access for three properties and it operates as an area for manoeuvring vehicles in respect of those properties. It is also relevant that Lot B has a rear setback area that is sufficient for parking and storage without using the right of carriageway for that purpose.

11. [63]

    In closing submissions, the Defendants accepted that the evidence gave rise to a finding that boats and other equipment had been left on the right of carriageway for periods of consecutive days, which represented excessive use of the right of carriageway. However, they submitted that the excessive use was limited to a discrete period of some weeks or months in late 2022 and early 2023 on the basis that:

12. [64]

    I do not accept that submission. Based on my findings at [51(a) and (j)–(r)] above, I am satisfied that the evidence establishes that there were repeated instances of boats being left by or on behalf of the Defendants on the right of carriageway between November 2019 and November 2022, including for periods of five and seven days. The Walton Survey Plan was not imprecise and the CCTV footage and photographs clearly show that the boats were located on the right of carriageway notwithstanding the absence of boundaries clearly marked on the concrete. The conduct continued unabated for five months from November 2022 to March 2023, with the evidence establishing that boats were left parked on the right of carriageway during that period for up to 41 days at a time.

13. [65]

    An owner of a dominant tenement may have the right to halt on a right of carriageway to load and unload and stop momentarily to set down or pick up, but this must be de minimus and no more. The parking and leaving of boats and storage of other goods on the right of carriageway for hours or days at a time is not de minimis and constitutes use by the Defendants in excess of and in breach of the rights granted to the owner of Lot B and persons authorised by them, irrespective of whether the Defendants’ use actually blocked, impeded or prevented others attempting to make use of the right of carriageway.

14. [66]

    More significantly, the instances of such conduct from December 2020 (identified at [51(j)–(t) and (v)–(x)] above) are all seemingly in breach of Order 3 of the 19 Nov Orders given there was no evidence that the Defendants parked and stored the boats and other goods on those occasions in connection with loading and unloading and on a temporary basis, in the sense contemplated by the 19 Nov Orders.

15. [67]

    During closing submissions, Counsel for the Defendants acknowledged that the parking and storage of boats on the right of carriageway was in breach of Order 3 of the 19 Nov Orders, apologised to Jamison and the Court on behalf of the Defendants for the contravention and accepted that, based on the evidence, it was appropriate for the Court to grant some form of injunction (T301.29; T303.48; T305.50; T330.29–32). I agree. In light of the findings I have made and the history of the matter, final injunctive relief preventing the parking and storage of boats and other goods on the right of carriageway is clearly warranted in this case. Unless restrained, there seems to be a real risk that one or more of the Defendants will continue to use the right of carriageway in an excessive manner. I deal with the terms of the injunction below.

16. [68]

    The reference to “vehicles” in the terms of the right of carriageway is a generic description which indicates that the range of vehicles that may be employed along the driveway are limited only by the purposes for which the right of carriageway might be used in a reasonable manner so as to benefit Lot B and the physical characteristics of the right of carriageway: Westfield v Perpetual Trustee at [20]–[22]; Lowe v Kladis at [89]–[90]; and McWilliam v Hunter at [38].

17. [69]

    The terms and its purpose do not limit the use by the Defendants of a forklift (a small industrial vehicle) or a trailer (an unpowered vehicle) along the right of carriageway. However, the physical characteristics, namely the width, angle of the turn in the south-western corner and the brick walls along the western and southern boundaries of the right of carriageway, provide a practical constraint on the size of a boat that can be towed by a forklift on the right of carriageway.

18. [70]

    The issue raised by the parties’ submissions is the maximum size of a boat towed by a forklift that would be compatible with the physical characteristics of the right of carriageway, with the determination of that issue being relevant to Jamison’s claim for an injunction preventing the Defendants from transporting boats over a certain size by forklift (Final Relief at [(1)(c)]).

19. [71]

    Mr Palmer dealt with this issue in his supplementary report dated 14 February 2022 and his report dated 27 October 2022 which responded to Mr McLaren’s report dated 2 June 2022. The experts’ joint report dated 8 March 2023 (Joint Report) and their oral evidence (not given concurrently) also dealt with it.

20. [72]

    The Joint Report records that the experts did not agree on the largest size of boat that could be manoeuvred around the corner of the right of carriageway by Neptune Marine’s forklift, although they agreed on the following:

21. [73]

    Mr Palmer relied on modelling, Computer Assisted Drawing (CAD) survey plans and a software program known as “Autodesk Vehicle Tracking 2019” (Autodesk program) to identify what he considered to be the size of boat that could navigate the 90 degree corner on the right of carriageway when pushed or pulled by a forklift. He created a forklift and boat combination within the Autodesk program, using a forklift based, as close as possible, on the actual forklift used by the Defendants and took into account the presence of the Guard Rail and the location of the bollard in the south-western corner as forming the corner boundary point of the unaffected land on Lot C (which he observed when he visited the site). He also reviewed CCTV footage and photographs, including footage of the site visit tests undertaken on 10 March and 5 May 2022, as referred to in Mr McLaren’s report.

22. [74]

    Mr McLaren’s opinion is primarily based on site testing undertaken on 10 March and 5 May 2022, which can be observed in CCTV footage and photographs taken on those days. Mr McLaren’s 2 June 2022 report records that the tests:

23. [75]

    Mr Palmer’s opinion in relation to the maximum dimensions of boats that could be transported using a forklift along the right of carriageway is set out in the Joint Report, as follows:

24. [76]

    In his supplementary report, Mr Palmer opined that boats between 14ft to 16ft in length “either collided with, or came too close to the Guard Rail, rear wall or bollard” in his computer simulations and that a 12ft boat, in his view, provided “the necessary leeway to negotiate the corner”. Mr Palmer considered that a larger boat would pose an unacceptable risk of encroaching on the site and private land and, in turn, potentially damaging property, including the walls, bollards and safety barriers adjacent to or along the boundary with the right of carriageway.

25. [77]

    In Mr Palmer’s report dated 27 October 2022, which responded to Mr McLaren’s report, Mr Palmer stated:

26. [78]

    Mr McLaren’s opinion is that the maximum dimensions of boats that can be transported along the right of carriageway are those with a length of 6.39m (21ft), with some boats of less than 6.39m length, and a width of 2.5m (7.5ft), with some boats and trailers less than 2.5m width.

27. [79]

    In Mr McLaren’s view, the on-site testing and video footage on 10 March and 5 May of the manoeuvring of the boats (on trailers) with the forklift indicated that the existing forklift could manoeuvre a larger boat (on a trailer) through the right of carriageway corner than that assessed by Mr Palmer. He noted that they could manoeuvre the corner of the right of carriageway without colliding with either the constraining western or southern walls and that the ease of manoeuvrability would be improved if the Guard Rail were removed.

28. [80]

    The Joint Report also records that Mr McLaren did not agree with Mr Palmer’s opinion for reasons that included:

29. [81]

    In cross-examination, Mr Palmer accepted that there was nothing wrong with multiple back and forth manoeuvres on the right of carriageway and that more than one is acceptable, although there would be a limit, which he did not specify (T170.43–50). He described the 300mm clearance offset as best practice but not as mandated or prescribed, clarified that the 300mm was based on the distance between the Guard Rail and the wall and considered that there were other options for a safety guard for the wall, such as industrial grade steel bollards (T171.21–172.38).

30. [82]

    In cross-examination, Mr McLaren confirmed that he was not present at the site test on 10 March 2022 (T188.28), the boat trialled on 10 May 2022 had a width of 2.3m and his opinion that a longer boat of 6.39m length and 2.5m width, could manoeuvre the corner without crossing onto the unburdened part of Lot C was based on “undertak[ing] a couple of manoeuvres” (T234.1–3).

31. [83]

    At the hearing, Jamison accepted that a 16ft long boat with a forklift could get around the turn of the right of carriageway (T271.33) but submitted that the Court should find that no boat of greater dimensions that 16ft long could reasonably use the right of carriageway based on Mr Palmer’s evidence and pressed for the Final Relief in the terms set out at [(1)(c)]. It submitted that the Defendants’ evidence, which relied on the 21ft boat, did not establish that use with a boat larger than 16ft would not be excessive (T336.30).

32. [84]

    The Defendants submitted that Jamison was not entitled to relief as it had not demonstrated that a boat 16ft long or longer could not get around the corner of the right of carriageway without trespassing on Jamison’s land and maintained that a 21ft long boat could go around the right of carriageway without interference.

33. [85]

    I do not accept Mr McLaren’s opinion that a forklift towing a boat of 6.39m (21ft) length and 2.5m (8.2ft) width can safely turn at the corner of the right of carriageway without encroaching on that part of Lot C unburdened by the right of carriageway or damaging any property, or that the evidence establishes that it can. The CCTV footage and photographs clearly show that, on 5 May 2022, the trailer carrying a boat which was 6.39m (21ft) long and 2.48m (7.5ft) wide drove over the bollard base, the boat collided with the bollard, the upper part of that boat (which was wider than the lower part) hung over the bollard and encroached onto the airspace area above the Splay Corner and, on one test, scraped along the Guard Rail.

34. [86]

    In cross-examination, Mr McLaren accepted that the boom of the boat would touch the bollard and may go into the future building location (referring to the building to be constructed in accordance with the CDC) but said that “if there was a building there, you’d take a couple of manoeuvres to get around the corner” (T227.7–11), and Defendants’ Counsel submitted that the conclusion could be drawn that a “21ft boat very nearly makes it [and] doing further movements would get you there” (T321.12–14). I do not accept those explanations in the context where Mr McLaren’s tests did not undertake multiple manoeuvres or demonstrate that a boat that size could get around the turn without encroachment. I also have reservations about Mr McLaren’s opinion in the context where he was under the impression that the Defendants were entitled to use the area of the concrete Splay Corner, he understood the bollard was on the right of carriageway and his report did not comment on the footage that showed the bollard being interfered with during the site test on 5 May 2022, with his focus seemingly being on the Guard Rail. As Defendants’ Counsel candidly acknowledged in closing submissions, those matters were “unfortunate” (T322.11–49).

35. [87]

    On the other hand, I do not accept that Jamison has established that the maximum dimensions of a boat that can traverse the right of carriageway without interference with other areas of Lot C is 4.88m (16ft) long and 1.8288m wide, being the dimensions in the Final Relief at [(1)(c)]. This is because the evidence (particularly the CCTV footage of the site tests on 10 March 2022) satisfies me, on the balance of probabilities, that a larger boat can turn at the corner of the right of carriageway without encroaching on that part of Lot C unburdened by the right of carriageway or damaging any property, namely a boat 4.88m (16ft) long and 2.2m (7.22ft) wide, being the dimensions of the boat used in the site test on 10 March 2022.

36. [88]

    It is true that the CCTV footage of the test on 10 March 2022 at 11.46am shows that the boat trailer drove over the bollard base and the bollard “wobbled” from the impact, but there was no demonstrable encroachment or impact to the bollard or Lot C off the right of carriageway shown in the footage of the test at 11.56am (when the forklift and boat drove from the other direction). Further, both tests used a “one turn” manoeuvre with the Guard Rail in place and the CCTV footage of the tests did not indicate any interference with or scraping of the Guard Rail with a boat that size. As Mr Palmer accepted in cross-examination, more than one turn is acceptable and, if the Guard Rail was removed (which appears to encroach onto the right of carriageway), there would be further clearance available for a boat that size (or larger) to manoeuvre the turn.

37. [89]

    These matters, together with the issues raised by Mr McLaren regarding Mr Palmer’s reliance on simulated testing (at [80(c)] above) and Mr Palmer’s acceptance in cross-examination as to the desirability of live testing, undermined Mr Palmer’s opinion set out at [75] above, which identified the largest boat to be 4.88m (16ft) long and 1.83m (6ft) wide if clearances were reduced to 100mm (assuming no Guard Rail present) and a five point turn was employed based on the Autodesk program simulations. In light of this, I do not consider Mr Palmer’s simulations to be reliable or his opinion as to the maximum dimensions of a boat that could be transported using a forklift along the right of carriageway without encroaching on other parts of Lot C.

38. [90]

    In summary, I find that a boat 4.88m (16ft) long and 2.2m (7.2ft) wide towed on a forklift can pass along the right of carriageway without committing a trespass on Lot C or interfering with a bollard or other structure outside the right of carriageway but that a boat 6.39m (21ft) long and 2.5m (8.2ft) wide cannot. Based on the evidence, I am unable to specify what the maximum boat dimensions are in respect of this right of carriageway, although the CCTV footage (and common sense) suggests that it would be somewhere in between the dimensions referred to.

39. [91]

    A grantee of a right of way has no right of deviation onto another part of the servient tenement, regardless of whether the way becomes impassable because of natural causes or lack of repair, although a right to deviate may exist where the obstruction is caused by the grantor or where improvement made by the servient owners to their property obstructed the use of the right of way: Hemmes Hermitage Pty Ltd v Abdurahman (1991) 22 NSWLR 343 at 347–8; Bullard v Harrison (1815) 4 M & S 387; (1815) 105 ER 877; and Selby v Nettlefold (1873) LR9ChApp 111.

40. [92]

    The Defendants submitted that no instances of encroachment or trespass can be found on the evidence because:

41. [93]

    I do not accept that submission. Based on my findings at [51(b)–(f) and (h)] above, I am satisfied that the evidence establishes that there have been multiple instances of encroachment and trespass to parts of Lot C by or on behalf of the Defendants. The Walton Survey Plan, Mr Nakos’ testimony and the CCTV footage and photographs in evidence also satisfy me, on the balance of probabilities, that the bollards struck and knocked over on 4 and 10 July 2020 by Mr Ames or others on behalf of the Defendants had been affixed to the concrete and located within the Splay Corner on Lot C outside the right of carriageway on those dates, such that those instances also involved trespass on other parts of Jamison’s land contrary to the rights granted under the right of carriageway.

42. [94]

    Where use of a right of way is excessive, the dominant owner will be liable in trespass and may be restrained by injunction from use in excess of the grant. The injunction may require the dominant owner not to permit licensees to use the right without ensuring that they do not exceed the terms of the grant, for example, by parking on a right of way when there is no room to do so: J Gaunt, Gale on Easements (18th ed, 2008, Sweet & Maxwell Ltd) at [9-95].

43. [95]

    As noted at [67] above, there is no dispute, and I accept, that it is appropriate to grant injunctive relief in relation to the Defendants’ excessive use of the right of carriageway to park and store boats and other goods. The parties are agreed that the terms of the injunction to be granted by the Court should prevent the Defendants (and their servants and agents) from parking on the right of carriageway other than in connection with the movement of boats, with the dispute being whether the exception should be qualified by the word “transiently”, as Jamison proposes, or by a period of one hour, as sought by the Defendants.

44. [96]

    In support of a time-based injunction and the one hour time period, the Defendants submitted that there would not be excessive use of the right of carriageway (or unreasonable interference) if the Defendants were to place boats or other items on it at the rear of Lot B for a period of up to one hour. They submitted that the one hour time period is appropriate in light of operational requirements and in the interests of a potential regime that would not see the parties before the Court for constant enforcement. They also submitted that the word “transiently” was imprecise, with no settled meaning at law, and it would significantly diminish their existing rights and those set out in the 19 Nov Orders which provided that Jaynick was not to park on the right of carriageway “except temporarily”.

45. [97]

    I do not accept that granting an injunction in the terms proposed by Jamison would lead to a significant diminution of the existing rights enjoyed by the Defendants. Having regard to the matters referred to at [62] above and the fact that it could not be said that the storage of boats and other goods on Lot B was physically impossible, in my view, the right of carriageway provides, at most, an implied right to stop momentarily on the right of carriageway to load and unload as part of the passing and repassing to and from the dominant property that is de minimis and no more. The use of the word “transiently”, in this context, is consistent with that concept, given its ordinary dictionary meaning is to last for only a short time, temporarily or momentarily.

46. [98]

    That said, I am not persuaded that the injunction should be granted in terms that refer to the word “transiently”, even though the word is apt, reflecting as it does the concepts of momentary and de minimis, as contemplated by the authorities. I consider that a time-based injunction is more appropriate as it will provide better clarity to the parties as to what is required and hopefully assist in avoiding further dispute and the need for supervision by the Court as to whether any stopping and parking can be considered “transient” or not.

47. [99]

    As to the period of time, having considered the parties’ submissions and while acknowledging the Court cannot quantify with precision what is transient or momentary for the purposes of movement of boats, equipment of goods in this case, the conclusion I have come to is that the injunction should provide for a period of no more than 15 minutes for the Defendants to park and leave boats and other goods on the right of carriageway in connection with the movement of those things. I do not consider that 15 minutes is too prescriptive or burdensome in this case: cf Australian Unity Retirement Living Management Pty Ltd v Karimbla Properties (No 10) Pty Limited [2019] NSWSC 635 at [137]. This is in the context where no evidence was led by the Defendants to support the imposition of the one hour period by reference to their operational requirements and, to the extent that anything can be gleaned from the CCTV footage, it appeared that stopping to load or unload a boat or other goods was undertaken by the Defendants much more quickly than one hour and within a matter of minutes. There was also force to Jamison’s submission that leaving a vehicle or boat parked for an hour on the right of carriageway would not be consistent with an implied right to stop and load and unload momentarily or transiently (T287).

48. [100]

    It will be a matter for the Defendants to ensure compliance by their employees, servants and agents and it will, of course, be open to them to seek permission from Jamison to install a sign about loading and unloading or to use the right of carriageway to park or stop for longer as required.

49. [101]

    Turning next to the relief sought by Jamison in relation to the maximum size of a boat that could be transported on the right of carriageway by a forklift (Final Relief at [(1)(c)]), the Defendants submitted that Jamison had not discharged its onus to show that any relief was necessary because the Defendants had demonstrated that a 16ft boat could get around the corner of the right of carriageway. They submitted that if the Court concluded that a 20ft boat was prone to trespass, no injunctive relief should be granted because additional manoeuvres could “get them over the line” (T326.30). For the reasons set out at [85]–[86] above, I do not accept that the Defendants have established that a boat 21ft long and 2.2m wide could traverse the right of carriageway with additional manoeuvres.

50. [102]

    In support of the relief it seeks, Jamison referred to the principles at [94] above and Hamble Parish Council v Haggard [1992] 4 All ER 147; [1992] 1 WLR 122. In that case, at 134, Millett J observed that, where it is possible to make lawful use of a right of way, the servient owner is entitled to an injunction to restrain excessive use, leaving it is to the dominant owner to disentangle the two users, but not to obstruct the use altogether.

51. [103]

    Jamison also submitted that the Court should adopt 16ft as the maximum length for the purposes of the restraint based on Mr Palmer’s evidence and because the Defendants’ evidence, which relied on the 21ft boat, did not establish that use by a boat larger than 16ft would not be excessive. I do not accept that submission. I have already addressed why I do not accept Mr Palmer’s opinion (at [89] above). In my view, it was a matter for Jamison, not the Defendants, to establish the dimensions of a boat that would involve excessive use and it did not do so. Given my findings at [90] above and in the context where the difference of 5ft is not insignificant, to grant relief which would prevent the use of a boat transported by a forklift that is greater than 4.88m (16ft) long and 1.8388m (6ft) wide would circumscribe a use which Jamison has not, in my view, shown to be excessive.

52. [104]

    Accordingly, I decline to grant the injunctive relief sought by Jamison that refers to a boat with the dimensions of 4.88m (16ft) length and 1.8388m (6ft) width.

53. [105]

    The relief sought by Jamison in its Final Relief at [(1)(c)] also contemplates an injunction by reference to “some other length that the Court considers appropriate”. I do not consider it open to the Court to select a figure between 16ft and 21ft as the maximum length of a boat and trailer which could traverse the right of carriageway and, as Senior Counsel for Jamison accepted during closing submissions, the Court “can't speculate about where in between a length might be” (T265.48–9). The Court can only proceed on the evidence before it and the findings it has made, which for these purposes are that a boat 6.39m (21ft) long and 2.5m wide transported using a forklift cannot go, pass and repass along the right of carriageway without encroaching on other parts of Lot C, but a boat that is 4.88m (16ft) long and 2.2 m wide can.

54. [106]

    In the context of the dispute between the parties and the findings of the Court at [90] above, namely, that a boat 6.39m (21ft) long and 2.5m wide towed by a forklift cannot pass along the right of carriageway without trespassing on Lot C or interfering with a bollard or other structure outside the right of the carriageway, I am satisfied that some form of relief is warranted but have determined that it is more appropriate to grant a declaration rather than an injunction in relation to this issue. This is for the reason that there is an absence of evidence of the Defendants having attempted to transport large boats along the right of carriageway on a regular basis in the past in a manner that has obstructed or unreasonably interfered with the use of the right of carriageway by the occupants of Lots A and C or encroached on or damaged structures on Lot C (noting that most of the instances referred to at [93] above involved the use of a forklift only), or that they threatened to do so in the future. In my view, a finding that a boat 4.88m (21 ft) long and 2.2m wide would encroach on Lot C outside the right of carriageway without more is not sufficient to warrant the grant of permanent injunctive relief.

55. [107]

    The making of a declaration should assist in quelling the controversy between the parties as it will constitute a binding determination as to the rights and obligations existing in relation to the right of carriageway as between Jamison and the Defendants, make clear to them what would constitute excessive use of the right of carriageway in the future and operate as a formal vindication to Jamison that boats of a certain size cannot be transported on the right of carriageway without encroaching on its land.

56. [108]

    The remaining injunctive relief sought by Jamison seeks to enjoin the Defendants from encroaching on the Splay Corner and from damaging or interfering with any bollard or barrier installed on that part of Lot C outside the right of carriageway.

57. [109]

    Jamison acknowledged that, considered on their own, the instances of use by the Defendants of its land off the right of carriageway might not justify the grant of an injunction even though the power to do so would be enlivened. However, it pressed for the relief to be granted, contending that the question whether to grant the relief should not be determined in isolation. It submitted that regard should be had to Mr Ames’ fairly cavalier disregard for Jamison’s property rights, the Defendants’ consistent obstruction of the right of carriageway before and after the 19 Nov Orders and the context that the order sought to restrain the Defendants from doing something that they should not be doing.

58. [110]

    The Defendants submitted that the Court should not grant the injunctive relief because the trespass (which was denied) was trifling and trivial, concerned the incidents on 4 and 10 July 2020 that related to a plastic bollard and involved conduct which took place prior to the 19 Nov Orders.

59. [111]

    As I have found at [93] above, the evidence demonstrates that there have been instances where the Defendants have trespassed on and damaged Jamison’s property, namely the bollard. I accept that Mr Ames’ conduct on 4 and 10 July 2020, when he drove over and damaged the bollard, reflected a dismissive attitude towards Jamison’s property and was suggestive of a wilful disregard by the Defendants of Jamison’s rights, which is a discretionary factor that favours the grant of an injunction: Economy Shipping Pty Ltd v ADC Buildings Pty Ltd and Fischer Constructions Pty Ltd [1969] 2 NSWR 97 at 106.

60. [112]

    However, having considered the totality of the evidence and the parties’ submissions, I am not persuaded that it is appropriate to exercise the Court’s discretion and grant the permanent injunctions in the terms sought in the Final Relief at [(1)(d)] and [1(e)]. This is for the following reasons.

61. [113]

    First, the bollard incidents were isolated events that occurred prior to the commencement of these proceedings. Considered objectively, the other four encroachment incidents were also of an inconsequential nature, in the sense that they did not cause any real loss or damage to Jamison or interfere with Jamison’s enjoyment of its property. Thus, I am not satisfied that the Defendants’ acts constituted a substantial interference with Jamison’s rights. Further, the CCTV footage indicates that, on at least two of the occasions of encroachment (19 June and 6 October 2020), there were bins and pallets stored on the right of carriageway on Lot C, which I infer had been placed there by Jamison’s tenant based on the terms of Order 1 of the 19 Nov Orders.

62. [114]

    Second, and while accepting that the trespasses are matters about which Jamison was entitled to complain, it is also conduct in respect of which a party can be adequately compensated, by way of nominal damages, to vindicate a right to exclusive possession of its land: Prentice v Mercantile House Pty Ltd (1991) 99 ALR 107 at 122.

63. [115]

    Third, no findings have been made that the Defendants interfered with or caused damage to the bollard or trespassed on the rear of Lot C after early November 2020. In that context, there does not appear to be a demonstrable risk that, unless restrained by Court orders, the Defendants are likely to encroach on the Splay Corner or damage the bollard or other barriers located off the right of carriageway.

64. [116]

    Fourth, the Defendants’ repeated instances of parking boats and storing goods on the right of carriageway in breach of the 19 Nov Orders was a significant discretionary factor for the Court when granting the injunctive relief sought in the Final Relief at [(1)(a)] but is not, in my view, of such importance when weighed against the factors set out above.

65. [117]

    Fifth, I consider it to be unreasonable and potentially oppressive to the Defendants to grant a permanent injunction that would restrain them from entering upon an area on Lot C, namely the Splay Corner, when the correct boundaries of that area have not been clearly marked by a suitably qualified professional (such as a Registered Surveyor). This is particularly as the yellow line markings painted by Mr Nakos are beyond the corner boundary measured by Mr Walton and it was accepted by Mr Nakos that those markings were on the right of carriageway.

66. [118]

    Sixth, in the context where the evidence does not demonstrate substantial interference with the bollards located off the right of carriageway in the past, I do not consider that it is appropriate to grant permanent injunctive relief in respect of unspecified barriers (or bollards) that are yet to be, but may be, installed on Lot C in the future.

67. [119]

    Seventh, to my mind, there is also a question about the utility of the injunctions in the context where Jamison proposes to undertake the CDC development and build over the Splay Corner up to the boundary of the right of carriageway.

68. [120]

    Finally, in light of the fraught relationship of the parties in the past, I am conscious of the undesirability of repeated litigation over minor trespasses that may be in breach of the injunctions if granted.

Conclusion, costs and orders

1. [121]

   For the above reasons, I have concluded that Jamison is entitled to injunctive relief to restrain the Defendants from parking or leaving any boats, vehicles or other goods on the right of carriageway other than in connection with the movement of such boats and goods for a period of up to 15 minutes, and a declaration in relation to the dimensions of a boat that cannot traverse the right of carriageway without encroaching on Lot C. Jamison has not established an entitlement to injunctive relief in respect of the incidents of trespass that occurred in 2020.

2. [122]

   Jamison also seeks an order for costs. As Jamison experienced success in obtaining some but not all of the relief it claimed and also at the hearing abandoned its claim for an injunction preventing the Defendants from transporting boats along the right of carriageway using a forklift, it seems appropriate for the Defendants to pay a proportion but not all of Jamison’s costs. I have however deferred making a costs order to enable the parties to consider these reasons and see if they can agree on the costs order to be made. If the parties are unable to agree within seven days, they are to notify my Associate by that date and provide an agreed timetable for short written submissions and any evidence on costs, with that issue to be determined on the papers.

3. [123]

   For these reasons, I make the following orders:

   1. (1)

      Order that the First Defendant, including its servants and agents, and the Third Defendant not park or leave on the Right of Carriageway any boats, vehicles, engines or any other goods or authorise any other person to do so other than for a period of no longer than 15 minutes at any given time and in connection with the movement of boats, equipment or goods on or off Lot B DP 406729.

   2. (2)

      Declare that a boat with dimensions of 6.39m (21ft) length and 2.5m (8.2ft) width when transported using a forklift cannot go, pass and repass along the Right of Carriageway without encroaching on other parts of Lot C DP 406729.

   3. (3)

      Note that by these Orders, Order 3 of the Orders made by the Court on 19 November 2020 is discharged.

   4. (4)

      Direct the parties to notify Henry J’s Associate within seven days if costs are agreed, failing which they are to provide an agreed timetable for written submissions and any evidence, with the issue of costs to be determined on the papers.

   5. (5)

      Otherwise dismiss the plaintiff’s claims for relief in these proceedings.