Neal and Helen Smith operate a commercial and industrial crane hire business, BCH Lifting at 351 Bootooloo Road between the Bruce Highway and the Don River, south of the Bowen airport.

They faced an injunction lawsuit in the District Court in Townsville in January over their obligations under a right-of-way easement over a shared access entry on their land (lot 8) in favour of the neighbouring site at 353 (lot 9) owned by Kevin Norman.

Norman presented photographs depicting large BCH cranes and other vehicles parked on the easement denying or significantly restricting his ingress and egress. Other evidence confirmed the obstruction and indicated that electric fences had been constructed along and across the easement area.

The explanation for the obstruction to Norman’s entry by Neal Smith, owner of BCH – a 40 yr old family company – was “necessary work” on the physical access. He emphasized  the blocking of the easement was temporary and for a “legitimate work purpose”.

The court held – against the BCH contention that it had no jurisdiction to grant an injunction – such relief was available for the removal of a “nuisance” and that it could act to uphold Norman’s rights under the registered easement, in appropriate circumstances.

It declined however to grant the injunction sought, because an enforceable undertaking was offered as an assurance that the easement terms in Norman’s favour, would be honoured.

Likewise in respect of the declaration Norman asked for. “There would be no utility in the court making a declaration”.

The court made clear that an injunction would be granted if the undertaking was not provided or honoured and the Smiths were ordered to pay Norman’s legal costs of the application.

Norman v Smith & Anor [2014] QDC 004 Brisbane Durward SC DCJ 24/01/2014 


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