DISTRICT COURT OF QUEENSLAND
CITATION:
Southee v Peterson [2021] QDC 200
PARTIES:
ROSEMARY MARGARET SOUTHEE
(Plaintiff)
v
WARWICK GEOFFREY PETERSON and JANE LORNA PETERSON
(Defendants)
FILE NO:
D192/20
DIVISION:
Civil
PROCEEDING:
Originating Application
ORIGINATING COURT:
District Court, Maroochydore
DELIVERED ON:
23 August 2021
DELIVERED AT:
Maroochydore
HEARING DATE:
20 August 2021
JUDGE:
Long SC, DCJ
ORDER:
(1) A permanent injunction issue restraining the Defendants whether by themselves or their servants, agents or contractors from constructing or carrying out any works for the purpose of creating a further access driveway from their property at 582 Cooroy Mountain Road, Cooroy Queensland more particularly described as Lot 3 on RP817473 Title Reference 18747231 (the Peterson Property) onto the Easement No. 601195532 (J298651C) being Easement A on RP210844 (the Easement).
(2) A permanent injunction issue restraining the Defendants whether by themselves or their servants, agents or contractors from removing, damaging or carrying out any works on any vegetation or soil (including without limitation by mowing, trimming, fertilising, poisoning or spraying) or carrying out mowing operations within the Easement.
(3) A permanent injunction issue restraining the Defendants whether by themselves or through any other person from in any way interfering or attempting to interfere with the Plaintiff or her family members, agents, contractors or invitees while they are accessing, or performing any works on, the Easement.
(4) A permanent injunction issue restraining the Defendants whether by themselves or their servants, agents or contractors from creating any channels or other structures on the Peterson Property which have the effect of directing water onto the Easement or the Plaintiff’s property being 578 Cooroy Mountain Road, Cooroy Queensland described as Lot 21 on SP288941 Title Reference 51096111 (the Southee Property).
(5) There be no order as to costs.
CATCHWORDS:
APPLICATION – PRACTICE AND PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES – INJUNCTIVE RELIEF – where the Plaintiff seeks orders without oral hearing – where there has been compliance with Part 6 of Chapter 13 of the Uniform Civil Procedure Rules 1999 – where all matters in dispute have been settled between the parties – where the parties agree and consent to the draft orders – whether orders should be made in accordance with the draft
LEGISLATION:
District Court of Queensland Act 1967, s 72
Uniform Civil Procedure Rules 1999, Part 6, Chapter 13
SOLICITORS: Rigby Lawyers for the Plaintiff
Greenhalgh Pickard Solicitors for the Defendants
By originating application filed 12 November 2020, the Plaintiff applied for injunctive and other relief against the Defendants as the owners of land adjoining her land, at Cooroy.[1] That relief is directed at the respective rights of the parties in relation to an easement granted over the Plaintiff’s property for access rights to the Defendants’ property. More particularly, that application was for injunctive relief, including on an interim basis, that the Defendants be restrained from:
(a)constructing a new driveway from their property onto the easement over the Plaintiff’s property; and
(b)interfering with, removing or damaging any trees, plants or other flora on the embankment within the easement; poisoning or removing vegetation along the fence line, mowing, tree trimming and spraying poisons onto the easement; or in any way interfering with the Plaintiff and members of her family or any contractors engaged by the Plaintiff while they were performing remedial work on the easement;
In addition, there was claim made for forms of declaratory relief as to the liability of the Defendants for the cost of rectifying damage to the easement, orders requiring remedial acts by them and for damages for some plants and mulch removed from the easement.
[1]Originating Application, filed 12/11/20, at [1].
On 25 November 2020 and upon return of that application and upon this Court receiving certain undertakings of the Defendants, this Court ordered that the proceedings continue as if started by claim with further directions for the filing of pleadings.[2] Effectively those undertakings were that the Defendants would not, whether by themselves or their servants, agents or contractors:
(a)carry out any construction works with respect to a new driveway from their property onto the easement until final determination of this proceeding or further order of the Court; and
(b)remove or damage any vegetation (including by mowing) on the easement pending determination of this proceeding or further order of the Court.
[2]Leave was granted to read and file a memorandum as to consent jurisdiction, pursuant to s 72 of the District Court of Queensland Act 1967, recording the agreement and consent of the parties “to the Court hearing and determining this proceeding, including any counterclaim”.
Accordingly, further pleadings in the nature of a statement of claim and defence from the Defendants and the Plaintiff’s reply, were filed.[3] It suffices to note that in lieu of the more specific claim for damages in the originating application, the statement of claim included in the prayer for relief, a more generalised claim for damages “for trespass and nuisance, including equitable and exemplary damages”.
[3]Respectively, on 4/1/21, 19/1/21 and 4/2/21.
The Plaintiff now applies by application filed on 10 August 2021, for the making of orders in accordance with the draft that has been provided, with such application to be decided without an oral hearing. There has been compliance with the requirements for such a hearing pursuant to Part 6 of Chapter 13 of the Uniform Civil Procedure Rules 1999 (“UCPR”). In particular and in accordance with UCPR 490(4), there has been material filed by the solicitors acting for each of the Plaintiff and Defendants, giving notice of the extent to which the application is resolved and the orders the parties have agreed to seek.
It is indicated that all matters in dispute have been settled between the parties and that on 30 July 2021, a Deed of Settlement was entered into in that regard, which deed provided, inter alia, that the Plaintiff and Defendants agreed and consented to the Court making the orders set out in the draft provided.[4] Those orders sufficiently clearly provide for injunctive relief, restraining the Defendants from stated acts in four separately stated respects, consistent with that previously sought by originating application.
[4]Affidavit of G I Rigby, filed 10/8/21, at [6]-[7].
Such relief is within the discretion of the Court and hence the application which has been made for the order of the Court. The circumstances which have been outlined, including the consent of the parties and therefore agreement of the Defendants to be bound by such orders, and the context of settlement of claims relating to interference and apprehended interference with proprietary rights in respect of an easement and trespass and nuisance, allows for a conclusion that the prospect of recovery of damages is not considered, nor to be taken, to be any adequate remedy and particularly in order to regulate the conduct of the parties for the future.
Accordingly, it is appropriate for the Court to make those orders in accordance with the draft, which has been initialled and dated 20 August 2021 and placed with the papers for that purpose.