Barter v Theunissen [2024] NSWSC 326

Hones Lawyers acted for the successful Plaintiff in these proceedings brought against her neighbours, Mr and Mrs Theunissen (Defendants) concerning three easements burdening the Plaintiff’s land (the Barter Land) and benefitting the Defendants’ adjoining land (the Theunissen Land) being:

1. A right of carriageway, located on a strip of the driveway on the Barter Land (RoC);
2. An easement for parking, located within the garage on the Barter Land  (Parking Easement); and
3. An easement for recreation, located on a 78m2 rooftop terrace (Terrace) on the Barter Land (Recreation Easement).

The dispute over the RoC arose out of allegations that the Defendants were parking their cars on the driveway for lengthy periods of time. The dispute over the Parking Easement arose out of allegations that the Defendants had locked the garage burdened by the Parking Easement without making a key available to the Plaintiff, and that the Defendants were using part of the garage for purposes other than for parking a car (specifically as a wine cellar).

Hones Lawyers commenced the proceedings on behalf of the Plaintiff seeking various declarations and orders for relief in respect of each of the three easements, specifically that the RoC did not permit parking, the Parking Easement did not give the Defendants exclusive possession of the garage or the right to store chattels in it, and the Recreation Easement granted the Defendants neither exclusive possession of the terrace nor the right to use the terrace for various impermissible purposes (such as basketball).

The Defendants cross-claimed against the Plaintiff seeking relief in the form of injunctive orders preventing the Plaintiff from using the terrace and, from ‘interfering’ with both the RoC and the Parking Easement, in addition to the removal of CCTV cameras monitoring the terrace.

In upholding all grounds of the Plaintiff’s claim and dismissing the Defendants’ cross-claim, Richmond J found that the terms of the RoC did not permit the Defendants to park on the driveway, the Parking Easement only permitted the parking of vehicles and the Recreation Easement did not grant the Defendants sole use of the terrace. 

The decision is currently the subject of an appeal.