CREATION – BY EXPRESS AGREEMENT OR UNDER STATUTE –
STATUTORY
EASEMENTS – where the applicants own a property which has a carport space
Source
Original judgment source is linked above.
Catchwords
REAL PROPERTY – EASEMENTS – EASEMENTS GENERALLY –CREATION – BY EXPRESS AGREEMENT OR UNDER STATUTE –STATUTORYEASEMENTS – where the applicants own a property which has a carport spaceat the back of the property – wherethe only way to access theapplicants’ carport space is by using a driveway on the respondent’sproperty – wherethe driveway also needs to be used by an occupant of theapplicants for pedestrian access to the applicants’ property –wherethe respondent objects to the use of the driveway by the applicants’owners and occupiers – where city councilregulates any demolition of theapplicants’ property – whether the statutory criteria under s 180Property Law Act 2023 (Qld) are satisfied such that the Court shouldimpose a statutory right of use in favour of the applicantsREAL PROPERTY – EASEMENTS – EASEMENTS GENERALLY –CREATION – BY EXPRESS AGREEMENT OR UNDER STATUTE –OTHER MATTERS
– where the applicants claim that “special circumstances”
exist under s 180(13) such that the respondent
ought to pay indemnity costs if
the application is successful – where the special circumstances alleged by
the applicants are
that the respondent was unreasonable in blocking the
driveway, calling the police when the applicants’ owners or occupants
“trespassed” on the driveway, and the respondent’s
unreasonable refusal to agree to the proposed easement by consent
– where
the respondent company was represented by its sole director who is not a lawyer
– whether special circumstances
exist to justify the departure from the
usual position that the applicant pays the costs of the
application
Property Law Act 2023 (Qld), s 180
Bell
Lawyers Pty Ltd v Pentelow (2019) 269 CLR 333
[2019] HCA 29,
applied
Birketu Pty Ltd v Atanaskovic (2025) 421 ALR 256
[2025] HCA
2, applied
Lang Parade Pty Ltd v Peluso [2006] 1 Qd R 42
[2005] QSC
112, applied
M Salazar Properties Pty Ltd v Jeffs [2024] QCA 257,
applied
Peulen v Agius [2015] QSC 137, applied
Judgment (86 paragraphs)
[1]
REAL PROPERTY - EASEMENTS - EASEMENTS GENERALLY - CREATION - BY EXPRESS AGREEMENT OR UNDER STATUTE - STATUTORY EASEMENTS - where the applicants own a property which has a carport space at the back of the property - where the only way to access the applicants' carport space is by using a driveway on the respondent's property - where the driveway also needs to be used by an occupant of the applicants for pedestrian access to the applicants' property - where the respondent objects to the use of the driveway by the applicants' owners and occupiers - where city council regulates any demolition of the applicants' property - whether the statutory criteria under s 180 Property Law Act 2023 (Qld) are satisfied such that the Court should impose a statutory right of use in favour of the applicants
[2]
REAL PROPERTY - EASEMENTS - EASEMENTS GENERALLY - CREATION - BY EXPRESS AGREEMENT OR UNDER STATUTE - OTHER MATTERS - where the applicants claim that "special circumstances" exist under s 180(13) such that the respondent ought to pay indemnity costs if the application is successful - where the special circumstances alleged by the applicants are that the respondent was unreasonable in blocking the driveway, calling the police when the applicants' owners or occupants "trespassed" on the driveway, and the respondent's unreasonable refusal to agree to the proposed easement by consent - where the respondent company was represented by its sole director who is not a lawyer - whether special circumstances exist to justify the departure from the usual position that the applicant pays the costs of the application
M V T Quach (director) appeared on behalf of the respondent
[10]
M V T Quach (director) appeared on behalf of the respondent
[11]
[1] Since 2 December 2024, the applicants (Zagros), have been the registered owners of land situated at 540 Sandgate Road, Clayfield. The property is more formally identified as Lot 67 on Registered Plan 34330 in the Brisbane City Local Government Area. The sole director of Zagros is Mr Hiwa Zandi.
[2] Since 28 January 2025, the respondent, (QE) has been the registered owner of neighbouring land, Lot 66, situated at 542 Sandgate Road. The sole director of QE is Dr Michael Van Thanh Quach. With leave, Dr Quach appeared on behalf of QE at the hearing of this application.
[3] The two lots, and a third at 544 Sandgate Road, Lot 65, once comprised three adjoining lots owned by the Lambert family. Lot 65 is now owned by Mr Aziz Abdul Hussain. Originally, a single residential dwelling, running north to south and facing the road, was situated across Lots 65 and 66, and a commercial shop front with a residential dwelling rear, running east to west and facing the road, was situated on Lot 67.
[4] Historically, there was only one driveway used for vehicle access to each of the three lots from Sandgate Road. Perhaps because all properties were once held by the same family, there has never been any registered easement over Lot 66 permitting a right of way in favour of the owners of Lots 65 and 67.
[5] The single house which occupied Lots 65 and 66 was demolished in about 2008 and by about 2016 had been replaced with two new residential dwellings, one on each lot. Each is a two-storey new-style construction, with a street facing roller door garage on the ground floor for carparking. Each has a separate paved driveway providing direct access to and from their respective garages to Sandgate Road. Lots 65 and 66 are separated by a wooden dividing fence.
[6] At about the same time, the rear sections of Lots 66 and 67 were entirely paved, so as to essentially form one contiguous area of concrete that extends across both backyards. A separate concrete driveway section, which connects to the original driveway entrance from Sandgate Road, (side driveway), was also installed along the eastern side of Lot 66, bordering Lot 67. Until recently, there was no dividing fence between Lots 66 and 67 and the side driveway was jointly used by the owners and occupants of both lots for vehicle access to the rear concreted areas of their properties.
[12]
[16] The PLA commenced operation on 1 August 2025. It replaced the Property Law Act 1974 (Qld). Section 180 of the PLA provides:
[13]
"180Power of court to impose statutory right of use
[14]
(1) A person having an interest in land (the benefited land) may apply to the court for an order imposing a statutory right of use over other land (the burdened land) if the statutory right of use is reasonably necessary for the effective use and development of the benefited land.
[15]
(2) Also, a person having an interest in land (also the benefited land) may apply to the court for an order imposing a statutory right of use over other land (the burdened land), relating to a utility, in favour of the public utility provider providing the utility, if the statutory right of use is reasonably necessary for the effective use and development of the benefited land.
[16]
(3) A statutory right of use imposed under subsection (1) may take any form, including, for example an easement or licence.
[17]
(4) A statutory right of use imposed under subsection (2) must take the form of an easement in gross.
[18]
(5) The court may make the order if the court is satisfied that -
[19]
(a) the statutory right of use is reasonably necessary for the effective use and development of the benefited land; and
(b) the statutory right of use is consistent with the operation of the Planning Act 2016, including, for example, the planning scheme under that Act that applies to the land affected by the statutory right of use; and
(c) the use or development of the benefited land is consistent with the public interest; and
(d) each person having an interest in the burdened land can be adequately compensated for any loss or disadvantage arising from the imposition of the statutory right of use; and
(e) the person applying to the court has made reasonable attempts to obtain the easement, or other statutory right of use, by agreement; and
(f) the attempts mentioned in paragraph (e) have been unsuccessful because -
(i) a person has refused to agree to the statutory right of use and the refusal is unreasonable in all the circumstances; or
(ii) a person who has capacity to agree to the statutory right of use can not be located.
[20]
(6) Also, for a statutory right of use imposed under subsection (2), the court may make the order only if the court is satisfied -
[21]
(a) the statutory right of use is able to be registered; and
(b) the public utility provider has agreed to the terms of the statutory right of use; and
(c) the local government in whose area the statutory right of use is located has agreed to the terms of the statutory right of use.
[22]
(7) If the court makes the order, the court must state in the order -
[23]
(a) the nature of the statutory right of use, and its terms; and
(b) the land to be benefited, and the land to be burdened, by the statutory right of use.
[24]
(8) However, for subsection (7)(b), the court is not required to state the land to be benefited if the statutory right of use is imposed under subsection (2).
[25]
(9) Also, if the court makes the order, and is satisfied that a person having an interest in the burdened land will suffer loss or disadvantage arising from the imposition of the statutory right of use, the court must make an order that the applicant pay an amount to the person, considered by the court to be just in the circumstances, by way of compensation.
[26]
(10) The court may make any order that the nature of the case requires, including, for example, any of the following orders -
[27]
(a) an order requiring a plan of survey, designating the area of the burdened land subject to the statutory right of use, to be prepared;
(b) an order imposing a condition on the applicant or a person having an interest in the burdened land.
[28]
(11) If the court makes an order that creates an interest that may be registered -
[29]
(a) the interest must be registered; and
(b) unless otherwise ordered by the court, the applicant must register the interest.
[30]
(12) If an interest is registered under subsection (11), the order creating the interest binds all persons, including, for example, the parties to the proceeding and each of their successors in title.
[31]
(13) The costs of a proceeding under this section are payable by the applicant unless special circumstances exist.
[32]
(14) Despite section 3, this section does not bind the State, other than to the extent a public utility provider is bound to comply with a statutory right of use in the form of an easement in gross in favour of the public utility provider.
(b) a right to access, enter or cross over land; and
(c) a right to carry and place a utility on, over or under land.
[36]
(a) electricity, gas, power, telecommunication, water, drainage, sewerage and other service pipes or lines; and
(b) facilities and structures reasonably incidental to the service pipes or lines mentioned in paragraph (a)."
[37]
[17] Although s 180(1) refers to the effective use and development of the benefited land, in this case it is only the use of Lot 67 that is relevant.
[18] The Court previously had power to make similar orders under former s 180 of the Property Law Act 1974, where, amongst other things, it was reasonably necessary in the interests of the effective use in any reasonable manner of any land. Although former s 180 also stipulated other matters of which the Court was required to be satisfied before such an order could be made, the stated criteria were less prescriptive.
[19] In Lang Parade Pty Ltd v Peluso[2005] QSC 112; [2006] 1 Qd R 42, Douglas J, at [23], summarised the following principles relevant to an application under former s 180:
[38]
(a) One should not interfere readily with the proprietary rights of an owner of land.
(b) The requirement of "reasonably necessary" does not mean absolute necessity.
(c) What is "reasonably necessary" is determined objectively.
(d) Necessary means something more than mere desirability or preferability over alternative means; it is a question of degree.
(e) The greater the burden of the imposition that is sought the stronger the case needed to justify a finding of reasonable necessity.
(f) For a right of user to be reasonably necessary for a development, the development with the right of user must be (at least) substantially preferable to development without the right of user.
(g) Regard must be had to the implications or consequences on the other land of imposing a right of user.
[39]
[20] In Peulen v Agius[2015] QSC 137, Carmody CJ cited the principles identified by Douglas J in Lang Parade Pty Ltd v Peluso, then further stated, at [27]-[28]:
[40]
"The concept of 'reasonably necessary' implies an objective test. The use of 'reasonably' as an adjectival qualifier of 'necessary' indicates that it is a continuum concept, and therefore a question of degree. However, as 'necessary' is the subject noun, it is clear that the semantic meaning of 'reasonably necessary' is more proximate to necessity than mere convenience, prudence or desirability. This will generally depend on the relevant factual matrix of the case.
[41]
The applicants are not required to demonstrate that the grant is 'absolutely necessary' or that there would be no effective use of the land if the statutory right of user was refused. In this respect, the position under the Property law Act 1974 (Qld) s180 deviates from the traditional position at common law, where an easement would only be imposed because it was 'absolutely necessary'."
[42]
[21] More recently, in M Salazar Properties Pty Ltd v Jeffs[2024] QCA 257, at [65], Flanagan JA (with whom Boddice JA and Kelly J agreed) stated of the former statutory power conferred upon the Court by s 180 of the Property Law Act 1974:
[43]
"Section 180 seeks to balance competing interests of landowners, where one party refuses to consent to something to which they ought to consent, and their refusal to do so prevents the effective use by the other party of the other party's land. The section empowers the court to resolve this issue by diminishing the property rights of the servient landowner insofar as the statutory right of user applies. It permits the court to alter the property rights of servient landowners against their will. This construction is reinforced by the use of the words, 'Imposition' in the section's heading, and 'impose' in s 180(1). By this section the court may impose upon the servient land or upon the owner for the time being of the servient land, an obligation of user or an obligation to permit such user. These words demonstrate that something negative - that is, a burden or 'obligation' of user - is being laid on the servient landowner."
[44]
[22] Whilst I am mindful that the language of the current provision is expressed in different terms to its predecessor, and contains additional statutory criteria that must be satisfied by an applicant, in my view the above statements of principle remain relevant to the Court's consideration of an application for an order for a statutory right of use under s 180 of the PLA. I will apply them here to my consideration of whether Zagros has satisfied me, on the balance of probabilities, of the statutory criteria and that I ought to grant the relief sought.
[45]
[23] The following affidavit evidence was adduced by Zagros.
[24] Lot 67 contains a dwelling, comprising a shop at the front and residential accommodation at the back. It also has a carport in the backyard. Zagros earns income from the building on the land by leasing the commercial shop premises and the residential accommodation to tenants.
[25] Mr Gordon Lambert was the previous owner of Lots 65, 66 and 67. He passed away in 2022. In June 2017, Mr Aziz Hussain purchased Lot 65 from the Lambert family. From then, until the events of 3 February this year, the side driveway on Lot 66 was used on a daily basis as a common driveway by the occupants of both Lots 66 and 67. Over that same period, Mr Hussain has used a gate in the dividing fence between his property at 544 Sandgate Road and the neighbouring property at 542 Sandgate Road to access and move his mowing machine through the side driveway every few weeks.
[26] Mr Hiwa Zandi, is the sole director of Zagros. On 6 August 2024 he attended an inspection of both Lots 67 and 66, as they were then both for sale. According to Mr Zandi, the selling real estate agent told him then that Lots 65, 66 and 67 were all previously owned by Gordon Lambert and his family for several decades; that prior to his death Mr Lambert had used the side driveway to access all three properties for many years; that historically the side driveway had been used to access the backyard of Lot 66 and the carport in the backyard of Lot 67; and that the Lamberts would allow Mr Zandi, on behalf of Zagros, to use the side driveway to access the carport on Lot 67. As a result of what he was told by the real estate agent, Mr Zandi decided to cause Zagros to purchase Lot 67, and lease it to tenants, as he understood that his tenants would continue to enjoy the benefit of being able to store cars in the carport on Lot 67.
[27] I note here that at the commencement of the hearing of this application, Dr Quach objected to the above evidence. I ruled that it would be admitted, albeit on the limited basis that it showed that Mr Zandi made the decision to purchase the property on the basis of certain representations made by the real estate agent, and not as evidence of the truth of those representations.
[28] On 13 August 2024, Mr Zandi entered into a contract for the purchase of Lot 67 on behalf of Zagros. Under an early access condition in the contract, Zagros obtained possession of the lot from about that time. From then until settlement of the contract on 2 December 2024, Mr Zandi used the side driveway to access the carport at the rear of the Lot 67 property at 540 Sandgate Road. Thereafter, Mr Zandi and his tenants used the side driveway to access the carport at the rear of their premises and Dr Quach and his tenants have used the side driveway to access the Lot 66 property at 542 Sandgate Road.
[46]
(a) in January 2008, the shopfront of the building on Lot 67 had an awning that extended out over the bitumen footpath almost to the edge of the road gutter. The original side driveway at that time comprised two concrete ribbon strips, separated by a section of grass, that ran from the front of Lot 66 all the way to the rear of the property. There was no dividing fence between Lots 66 and 67;
(b) by 2009, the original house on Lots 65 and 66 had been removed. The carport at the rear of Lot 67 was present and used for car parking. There was no dividing fence between Lots 66 and 67;
(c) in April 2015, Lots 66 and 65 had been cleared for development. The old concrete and grass strip side driveway had been fully removed. The carport at the rear of Lot 67 remained. There was no dividing fence between Lots 66 and 67;
(d) by May 2016, a new house, with its separate paved driveway, had been erected on Lot 65, and the framework and part of the slab for Lot 66 had been installed. The awning of the shop front on Lot 67 had been removed. The carport at the rear of Lot 67 remained. The side driveway was present but appears to be covered in dirt. There was no dividing fence between Lots 66 and 67;
(e) by May 2017, a new house, with its separate paved driveway, had been erected on Lot 66. The original side driveway had been replaced with a new fully concreted driveway. There was still no dividing fence between Lots 67 and 66.
[47]
(a) the house on Lot 66, with its separate paved driveway. The separate driveway has a short, three-panel, privacy screen type fence, that runs from about the inner edge of the footpath on Sandgate Road to the side wall of the house at the front of the garage. On the southern side of the fence is a short, paved walkway that allows pedestrian access to the ground floor front door of the house. That section of paving essentially runs alongside the side driveway pavement. It is separated from the driveway in part by a small metal railing that runs out from the door for a few metres;
(b) the entrance to the side driveway from Sandgate Road traverses a section of the bitumen footpath. Thereafter, past the footpath and commencing from about in line with the frontage of the shopfront on Lot 67, is the paved section of the driveway;
(c) the width of the side driveway is quite narrow as it passes between the building on Lot 67 and the house on Lot 66. It is effectively bounded on the northern side by the ground floor wall of the house on Lot 66 and on the southern side by the wall of the building on Lot 67, such that it has the appearance of an alleyway running between the two properties. The driveway slopes slightly as it extends from the front of the property to the rear;
(d) the front east-facing section of the second storey of the house on Lot 66 commences about in line with the ground floor garage. The southern side of the second storey extends out beyond the wall of the lower ground floor wall, so that it hangs about halfway over the side driveway;
(e) at the rear of the building on Lot 67, there is a short metal rail section that runs from the end of the building, parallel with the side driveway, as it enters the larger paved rear area. The metal rail extends along a few metres to meet a small brick wall that runs perpendicular to the rail, extending south into Lot 67. The rail section has a small gap within it, presumably to allow pedestrian access from the side driveway onto Lot 67. The small brick wall appears to provide for an outdoor area and notional separation of the rear concrete section from the carport on Lot 67;
(f) past the small brick wall at the back of Lot 67, and continuing parallel with the side driveway, is a short, low section of cement-filled single concrete blocks. The blocks essentially separate the side driveway from the rear of Lot 67 for a few metres. Past the line of concrete blocks is the open area, where the paved backyards of Lots 66 and 67 merge, and where the carport on Lot 67 is situated and accessible from the side driveway;
[48]
[34] From mid-December 2024 until the present, Mr Bzhar Ali Hassan has lived at 540 Sandgate Road in the "downstairs studio". Mr Hassan does not have a formal lease for the premises. Since he has lived there, the landlord (Mr Zandi) has allowed him to park his car in the carport at the rear. Ms Hassan previously accessed the driveway through the side driveway on 542 Sandgate Road. He is an Uber driver and uses the side driveway on a daily basis to drive to and from 540 Sandgate Road.
[35] On or about 20 December 2024, Mr Dilith Vidu Vidanagamage Denepitiya Vidanagamage signed a residential lease for Unit 3, 540 Sandgate Road. Since then, he has lived at the unit. Mr Vidanagamage previously used the side driveway on Lot 66 to access the parking spaces at the rear of 540 Sandgate Road. He would use the side driveway on a daily basis to drive in and out of the premises and to park his car in the carport in the backyard.
[36] On 24 December 2024, Mr Md Mizanur Rahman signed a residential lease for Unit 4, 540 Sandgate Road. He has resided there since. He does not have a car but previously used the side driveway to access the premises, as the stair entry to his room is directly from the driveway. According to Mr Rahman, the side driveway provides the only safe foot access to his room as the space available on the other side of the building is narrow and has various services, such as air conditioning units and a meter box, sticking out from the side of the building and making it difficult and unsafe to walk along.
[37] According to Mr Zandi, Dr Quach and his family have never lived in the house at 542 Sandgate Road. Since late January 2025, he has seen that the property has been consistently occupied by residential tenants. He has also continuously observed QE's tenants and Zagros' tenants using the side driveway since Zagros purchased Lot 67.
[38] On 3 February 2025, Dr Quach erected an extendable barrier across the side driveway, about midway along it. A sign attached to the barrier read, "PRIVATE! KEEP OUT". That same day, Dr Quach placed copies of a written notice in the letterbox of Lot 67 and on the three cars at the rear of Lot 66. The notice was addressed to the owner of 540 Sandgate Road, from the owner of 542 Sandgate Road, identified only as "Michael". The notice read:
[49]
"Re: NO PUBLIC ACCESS TO DRIVEWAY ON LOT, 542 SANDGATE ROAD CLAYFIELD
[50]
There will be no public access to our driveway on our lot, effective immediately.
[51]
TO BE CLEAR, PLEASE DO NOT DRIVE ON OUR DRIVEWAY TO ACCESS YOUR BACKYARD.
[52]
[39] On 5 February 2025, Mr Zandi, writing as the owner of 540 Sandgate Road, wrote a letter to "Michael" and placed it at the front door of the house on Lot 66. In that letter, he requested that the owner of 542 Sandgate Road not block access to the backyard of 540 Sandgate Road as they had been accessing it under an implied right of way; that the driveway had historically been used to provide such access; and that there was an informal easement providing for a right of way to access the backyard of 540 Sandgate Road via the driveway.
[40] Mr Zandi did not receive a reply to his letter.
[41] Between 8 and 15 February 2025, police from Hendra Police Station contacted Mr Zandi and notified him they had received complaints from Dr Quach about the residents of Lot 67 trespassing on the side driveway of Lot 66. On 16 February, two police officers attended at Lots 66 and 67. According to Mr Zandi, they considered the matter was a civil dispute and refused to charge any person with trespass.
[42] On 16 February, 25 August and 28 August 2025, Dr Quach parked his car in or across the side driveway, thereby blocking access to it.
[43] On 18 February 2025, Mr Zandi sent a text message to Dr Quach suggesting that they take the matter to court so that an easement could be registered, and they would have no further dispute. Dr Quach did not reply.
[44] On 25 March 2025, Mr Zandi, who is a solicitor, wrote a letter from his firm on behalf of Zagros to QE. The letter confirmed that the law firm acted for Zagros and requested QE consent to registration of an access easement over the driveway on Lot 66 "...in the interest of a cost-effective and amicable resolution." The letter attached a survey plan showing the proposed easement, together with a partially completed easement form for execution and lodgement with the Queensland Titles Registry to register the proposed easement. The letter requested a response by no later than 5pm on 30 April 2025 and advised that if QE did not agree to the formal easement proposal by consent that Zagros would have no option other than to initiate proceedings in the Supreme Court for an order for a statutory right of use to resolve the issues.
[45] Mr Zandi did not receive a reply or response to his letter.
[46] The plan of the proposed easement shows that it would be three metres wide and would be 40.234 metres in length, running from the front to the back of the property. The total area covered by the proposed easement would be 121 m2.
[53]
[55] Dr Quach provided brief affidavit evidence and was cross-examined at the hearing of the application.
[56] His affidavit evidence was to the following effect.
[57] He inspected 540 Sandgate Road on 28 June 2024. At the time the property was uninhabitable because the front shop had been left to rust for decades. He noticed rust and dust filled the dark room with a foul odour and the premises were vacant.
[58] He believed that Zagros had initially tried to purchase both Lots 66 and 67 but were unable to afford to buy Lot 66. He later purchased that lot with the intention of living in the house at 542 Sandgate Road. He has been unable to live in it because of the actions of Zagros and Mr Zandi.
[59] On 16 February 2025, a locked gate was erected on the driveway to prohibit access to the driveway on Lot 66. That same day, he saw Mr Zandi destroy the gate. A photograph of the barrier exhibited by Dr Quach shows the extendable metal barrier on the Lot 66 driveway, partially knocked over.
[60] According to Dr Quach, it is on "public record" that Lot 67 features a lock-up garage for two cars. Dr Quach based his belief on a print-out of a real estate agent's advertisement for 540 Sandgate Road, which lists amongst the property's features, "Lockup Garage 2".
[61] I should also add that part of Dr Quach's affidavit quoted excerpts of the transcript of the hearing of an earlier interlocutory application in this matter before Bowskill CJ on 5 September 2025. Dr Quach submitted that the selected excerpts supported his case as Zagros had admitted during the hearing of the earlier application that the driveway space between the properties was so narrow that no car could possibly fit down it; and the Chief Justice had found that the space between the two properties was not a driveway. After querying the provenance and accuracy of the quoted excerpts, a copy of the transcript was eventually produced and tendered as an exhibit. I have read and considered the transcript. When read in their proper context, none of the sections cited by Dr Quach support his case. It is clear that what was being referred to then was the narrow passageway on the southern side of Lot 67 and not the side driveway.
[62] When cross-examined, Dr Quach gave the following evidence.
[63] His primary residential address was his mother's address in Newtown, New South Wales. He had been based there since 1980 or so. It was the only static address he had had for the past ten years or so and was his primary address since the 1980s.
[54]
[74] Zagros says an order for a statutory right of user in the form of an easement for right of way over the side driveway of Lot 66 is reasonably necessary for the effective use of its land on Lot 67. It says that in circumstances where the only car parking facility available is at the rear of the property and where the only means of vehicle access to the rear of the property is via the side driveway on Lot 66, unless an order granting the easement sought is made, the owners and occupiers of Lot 67 will be unable to access their land by vehicle, thus detracting from its intended use as a dual residence and commercial shop.
[75] Zagros further says that there is no other option available to it to rectify the situation, as it is not permitted to demolish the building on Lot 67 because it has a commercial character building overlay; that if an order is made for the proposed easement any interference with QE's proprietary rights would be minimal, as the Court would simply be formalising what has been a longstanding usage of a right of way over the side driveway; that no further development work would be required to give effect to the proposed easement; that the burden that would be imposed on QE's land would be very low; and that QE can be adequately compensated by Zagros paying a notional sum and covering QE's reasonable costs to remove the dividing fence it has installed along the side driveway.
[76] QE argues that it is not reasonably necessary for the effective use of Zagros' land that the order sought be made. It submits that the interference with its land would be unreasonable and extensive in circumstances where Dr Quach had intended to live in the house at Lot 66 with his family but where the easement would effectively deprive QE of about 30% of its land area and would result in a dramatic reduction in its value; that the granting of an easement would be contrary to the indefeasible title QE acquired when it became the registered owner; that the burden of accommodating the proposed easement would be excessive, permitting all manner of persons to come and go via its land at any time of the day or night; and that Zagros is attempting to profit by acquiring land for which it could not previously afford to pay.
[77] QE also disputes Zagros' claim that there is no other carparking facility on Lot 67 other than that located at the rear. In that respect, Dr Quach relies on the evidence he gave, by reference to photographs of the premises, that there was another driveway on the southern side of Lot 67, extending down the side of the property for about 10 metres and leading to a door behind which is a basement used as a garage for carparking. QE also challenges the suggestion that the premises are within the commercial character overlay, submitting that the evidence on that point is not clear at all. QE says that where it has clearly revoked any implied licence permitting a right of way along its side driveway and where there are other accessible carparking options available on Lot 67, Zagros has not established a basis for the orders sought to be made.
[55]
[78] Three disputed matters of fact arise from the evidence adduced at the hearing of this application and the submissions of the parties. The first is whether there is another accessible carparking facility on Lot 67. The second is whether Dr Quach ever intended to live in the house at Lot 66. The third is whether the building situated on Lot 67 is in fact within the commercial character building overlay, such that it must be preserved and its demolition is not permitted.
[79] In assessing the evidence and finding the facts on these issues, I note that Dr Quach did not request or require for cross-examination any of the deponents of the affidavits Zagros relied upon. Save for in some limited respects, their evidence was unchallenged.
[80] In contrast, Dr Quach was cross-examined and his evidence was challenged.
[81] I accept Zagros' evidence and I reject Dr Quach's contrary evidence on each of the three disputed issues. I found his evidence to be unreliable and implausible in several material respects. He was evasive and refused to answer simple, direct questions on many occasions. He instead sought to deflect and dissemble, at times resorting to deliberately obtuse responses and points of semantic pedantry. A prime example was his repeated prevarication when it was put to him that he had never lived at 542 Sandgate Road. Despite several reiterations, and my own efforts to intervene, Dr Quach never actually answered the question. He was also prone to hyperbole and at times gave answers that I considered to be expedient to advance his own interests rather than genuine responses.
[56]
[82] I find that the paved concrete area at the rear of the property where a carport is situated, is the only area accessible and available for use as a car park on Lot 67. There is no other carpark at the front, or underneath, the property.
[83] I reject Dr Quach's contrary evidence on this issue.
[84] In addition to what I have already outlined above, Dr Quach's evidence was inconsistent with the photographic evidence and the unchallenged evidence of Mr Zandi and Mr Rahman. The photographs do not show the driveway or basement garage entrance described by Dr Quach. They show a pedestrian entrance, behind a screen, at the front southern side of the property, near to a side passage that runs between the building and neighbouring fence on that side. Further, the evidence clearly establishes that the passage on that side, between the south side of the building on Lot 67 and the dividing fence for Lots 67 and 68, is far too narrow for a driveway that would allow vehicle access. For the reasons explained by Mr Rahman in his evidence, it is not even fit for use as a pedestrian walkway. There is no other evidence of a garage underneath the house accessible from that side of the building.
[57]
Did Dr Quach intend to live at 542 Sandgate Road?
[58]
[85] I do not accept Dr Quach's evidence that he intended to live at 542 Sandgate Road. Other available evidence does not support Dr Quach's contention. Indeed, it strongly suggests the contrary.
[86] Although Dr Quach gave evidence that he was moving up to Brisbane, there is no reliable evidence to show that he ever did. The evidence establishes that Dr Quach's usual residential address remains, and has been for many years, his mother's address in Sydney. The property was acquired by QE, a family trust, and is not owned personally by Dr Quach. Mr Zandi swears that he has never seen Dr Quach or his family residing at the property and that since it was acquired by QE it has been consistently occupied by residential tenants. Dr Quach confirmed in cross-examination that the service address he provided on his affidavit was for a virtual address business service at Loganholme.
[87] I would also add that I do not accept Dr Quach's evidence that Mr Zandi acted violently towards him and that he feared him. In my view, Dr Quach's evidence in that respect was plainly exaggerated.
[59]
Is the building on Lot 67 under the commercial character building overlay?
[60]
[88] Mr Zandi exhibited a copy of the BCC Property Lot Report for Lot 67 to his first affidavit. The report shows that the "Commercial character building overlay" applies to the lot. The document provides the following description of the overlay:
[61]
"The Commercial character building overlay identifies shops, offices and other buildings used for commercial purposes that add to the City's character, and are considered of value for preservation. Most commercial activities can be accommodated in commercial character buildings. Demolition is regulated by the Commercial character building (demolition) overlay code. Use of the buildings is governed by the Commercial character building (activities) overlay code..."
[62]
[89] A copy of the Commercial character building (demolition) overlay code was tendered on behalf of Zagros and received as a separate exhibit at the hearing of the application. The document states that it is effective from 3 July 2017. The document relevantly provides:
[63]
(1) The purpose of the Commercial character building (demolition) overlay code is to:
[64]
(a) Implement the policy direction in the Strategic framework in particular:
(i) Theme 2: Brisbane's outstanding lifestyle, and Element 2.1- Brisbane's identity;
(ii) Theme 5: Brisbane's CityShape and Element 5.5 - Brisbane's Suburban Living Areas, and Element 5.8 - Brisbane's Growth Nodes on Selected Transport Corridors.
(b) Provide for the assessment of the suitability of specific demolition, partial demolition or removal of a part of any commercial character building in the Commercial character building overlay.
[65]
(2) The purpose of the code will be achieved through the following overall outcomes:
[66]
(a) Traditional commercial character buildings contribute to the character, identity or history of the area and are protected from being demolished, removed or significantly altered, and where involving partial demolition, retains its traditional building form and character.
(b) Demolition or removal only occurs where a building is structurally unsound."
[67]
[90] The document then further provides the following table:
[68]
Table 8.2.8.3 - Performance outcomes and acceptable outcomes
[69]
The building must not be capable of structural repair.
[70]
The building is demonstrated, by an engineering report prepared by a Registered Professional Engineer Queensland, to be structurally unsound and not reasonably capable of being made structurally sound.
[71]
If involving demolition of a part of the building
[72]
(a) still be clearly identifiable as a commercial character building with a traditional building form and character of having been constructed in 1946 or earlier;
(b) be sited in its original position (generally the front property alignment);
(c) maintain its original traditional proportions;
(d) retain key elements such as an awning over the footpath.
[73]
Development retains the integral components of the building such as an awning over the footpath and street front entrance which contribute to its traditional commercial character building architectural style and character**.**
[74]
[91] I am satisfied on the available evidence that the building on Lot 67 is a commercial character building and is subject to the commercial character building overlay; and that because of its character as such, the building can only be removed or partly or fully demolished in accordance with the Commercial character building (demolition) overlay code.
[92] Whilst the evidence does not go so far as to show that the existing building on Lot 67 can never be demolished or removed, the evidence satisfies me that such modifications or works are strictly regulated by the BCC. There is no evidence to suggest that the building is structurally unsound and not reasonably capable of being made so, such that its removal or complete demolition would be permitted. The fact that it is currently leased to commercial and residential tenants who are occupying the premises suggests otherwise.
[93] I accept Mr Zandi's evidence, and it is apparent from the photographs of the premises and other evidence, that alternative access could only be gained to the rear of Lot 67 by demolishing at least part of the existing building. Although Zagros did not adduce any specific evidence about what would be required, or how that might be done, it seems obvious that major demolition works would need to be undertaken. Indeed, I cannot see how that could be achieved by partial demolition of the building, even if that was permitted by the Commercial character building (demolition) overlay code.
[75]
[94] Under s 180(1) of the PLA, an application for an order granting a statutory right of use over land may only be made by a person who has "an interest in land".
[95] Dr Quach submitted that Zagros had no standing to bring an application for an order under s 180 of the PLA as it did not have an "interest in land."
[96] It seems that Dr Quach misunderstood the nature of the interest that an applicant must have. Dr Quach seemed to think the applicant must have an interest in the land over which the statutory right of use is sought. That is not correct. As s 180(1) makes plain, the applicant must have an interest in the "benefited land". If so, the applicant may then apply for an order imposing a statutory right of user over other land, referred to as the "burdened land".
[97] Here, Zagros clearly has an interest in land. The three applicants are the registered owners, as tenants in common in equal shares, of the estate in fee simple in Lot 67. If relief is granted as sought by Zagros, then Lot 67 will be the "benefited land" and Lot 66 will be the "burdened land".
[76]
[98] Sections 180(1) and (5)(a) of the PLA require the Court to be satisfied that the statutory right of use is reasonably necessary for the effective use of the benefited land (i.e., Lot 67).
[99] This is the crucial issue in the case.
[100] Zagros currently uses the land to generate income through leasing the building on the land to several tenants. It intends to use it for a similar purpose in the future.
[101] According to the Lot Report, Lot 67 is located in a "LMR2 Low-medium density residential (2 or 3 storey mix)" zone, which provides for a range and mix of dwelling types, including non-residential services and facilities that cater for local residents. Consistent with that description, the building on Lot 67 has been used, and is intended to continue to be used, as a dual commercial shop and residential premises.
[102] Three people currently live in the residential accommodation at the rear of the building. Another is a commercial tenant and intends to operate a convenience store from the shop at the front.
[103] The land is also used for carparking associated with the commercial and residential tenancies. To that end, there is, and long has been, a large, paved section at the rear of the property which houses a carport with space for two vehicles to be parked and which merges with a similar paved section at the rear of Lot 66. There is also space for two other cars to be parked next to the carport.
[104] I accept that Zagros, and each of the present tenants, need to access and use the side driveway on Lot 66 to obtain vehicle access to the rear of Lot 67 or pedestrian access to the residential accommodation and other parts at the rear of the property. I have accepted Zagros' evidence that there is no other means of access available, and I have found that there is no other garage or carparking facility at the front of, or underneath, the premises. I am satisfied that without such use of, and access to, the side driveway, the land on Lot 67 cannot be effectively used for its current and intended purposes.
[105] I appreciate and accept that if I were to grant the easement sought that would result in interference with QE's proprietary rights as the owner of Lot 66 and that one should not readily interfere with such rights. However, I am satisfied that there is no other alternative means by which the occupants and owners of Lot 67 can access the rear of the property by car or by foot. The proposed easement is not simply a matter of preference, convenience or desire on the part of Zagros. It is a necessity for the effective use of its land.
[112] Section 180(5)(b) of the PLA requires the Court to be satisfied that the statutory right of use is consistent with the operation of the Planning Act 2016.
[113] I am so satisfied.
[114] The proposed easement would formalise past usages of the side driveway that appear entirely consistent with the planning zone for the area. It would not require any construction or work to be done on the land that might be inconsistent with any planning scheme. The only thing that would need to be done would be to remove the recently installed dividing fence blocking access to the rear of Lot 67. The granting of a statutory right of use as proposed would not require any development application or proposal to be considered by the BCC.
[115] Although Dr Quach argued that I could not be satisfied of the consideration under s 180(5)(b) because the building on Lot 67 was not within the commercial character building overlay, I have found otherwise. Nothing else raised by Dr Quach on behalf of QE suggests that the granting of a statutory right of use as proposed would, or might, be inconsistent with the operation of the Planning Act.
[79]
[116] Section 180(5)(c) of the PLA requires the Court to be satisfied that the use of the benefited land is consistent with the public interest.
[117] I consider that it is.
[118] I have already discussed the current uses of the land. It is to be borne in mind that Lot 67 is a small 405 m2 block, on a busy main road, within a low-density residential planning zone in suburban Brisbane.
[119] In my view, Zagros' use of the land, leasing the existing building on the land to residential and commercial tenants, is entirely consistent with the public interest. The use by those tenants and Zagros of the paved area at the rear of the property to provide for associated carparking is also entirely consistent with the public interest. As previously noted, there is no other available carparking facility or option on the property. Nor is there any suitable long-term street carparking on Sandgate Road or in the near vicinity of Lot 67. An easement over part of the land on Lot 66, enabling the parking facilities on Lot 67 to be utilised would promote the public interest by allowing tenants to park safely off the street, thereby reducing the need for on-street parking, and by enabling and enhancing the economic uses of the property to provide for residential and commercial tenants.
[80]
[120] Section 180(5)(d) of the PLA requires the Court to be satisfied that each person having an interest in the burdened land can be adequately compensated for any loss or disadvantage arising from the imposition of the statutory right of use.
[121] I am so satisfied.
[122] QE, as registered owner of the estate in fee simple, is the person with the primary interest in the burdened land. Other registered interests are held by Perpetual Corporate Trustee Ltd, as mortgagee, and the Crown, which retains residual rights and interests under a Deed of Grant. In my view, no question of adequate compensation arises in respect of those latter entities as there is no suggestion that they will suffer any loss or disadvantage from the imposition of the proposed easement.
[123] In terms of QE, I accept that there will be some loss or disadvantage suffered by it if the relief sought is granted. As previously noted, it would include the burden of having to share the use of the driveway with the owners and occupants of Zagros' land, which will cause some inconvenience; the loss of exclusive rights over, and use of, the land upon which the side driveway is located; and some loss of amenity and interference with the quiet enjoyment of the land by it and its tenants.
[124] Although Dr Quach submitted that QE would suffer inevitable diminution of the value of its land if the easement was granted, I do not accept that would be the case. The evidence adduced by Zagros made plain that the side driveway was being used as such at the time QE entered into its contract for the purchase of Lot 66. Given the nature and layout of the side driveway; the large open paved area at the rear of Lots 66 and 67, obviously designed to permit access from the side driveway to the rear of Lot 67; and the size and location of the carport in that area on Lot 67, it is hard to believe that Dr Quach was not aware that the side driveway on Lot 66 was being used as a shared driveway by his neighbours at the time he entered into the contract to purchase Lot 66 on behalf of QE. It is also hard to believe that the real estate agent selling Lot 67, which Dr Quach claimed was the same agent he dealt with for QE's purchase of Lot 66, would not have pointed out the existence of the side driveway arrangement to Dr Quach. In those circumstances, I would expect that the price paid by QE to purchase the property would have factored in the shared use of the side driveway.
[81]
Reasonable attempts to obtain the easement by agreement?
[82]
[129] Under s 180(5)(e) of the PLA, Zagros must satisfy me that it has made reasonable efforts to obtain the proposed easement by agreement. Under s 180(5)(f)(i) Zagros must satisfy me that efforts to obtain the easement by agreement were unsuccessful because QE refused to agree to the statutory right of use and the refusal is unreasonable in all the circumstances.
[130] I am satisfied of each of those matters.
[131] The evidence adduced by Zagros establishes that Mr Zandi responded to Dr Quach's notice revoking any licence to use the side driveway by writing to Dr Quach, pointing out that the side driveway had always been used as a shared driveway, and proposing that the matter be formalised. After he received no response, the lawyers for Zagros wrote to QE to propose an easement by consent. Zagros offered to pay the registration costs associated with the matter. QE did not respond. As a result, Zagros filed the present application for relief.
[132] I consider the steps taken by Zagros constitute reasonable steps to obtain the easement by agreement. Zagros was unsuccessful in doing so because QE refused to agree. I consider QE's refusal to be unreasonable in all the circumstances.
[133] Whilst Dr Quach maintained that it was not unreasonable for QE to refuse to agree because of the various matters I have already set out above with respect to the interference with its land and the imposition and supposed loss and disadvantage it would suffer, I do not consider those matters provide a reasonable basis for the refusal to agree to what was proposed by Zagros.
[134] It seems to me that the various actions taken by Dr Quach to prevent access to, and use of, the side driveway by the owners and occupants of Lot 67, and QE's subsequent refusal to agree to the proposed easement, stem from Dr Quach's misguided and inflexible belief that while QE has indefeasible title over Lot 66 no other party can acquire an interest or right in respect of its land. As I have already explained, that is not so.
[135] That is not to say that QE's ownership of Lot 66, and its indefeasible tile, are irrelevant. They are of course significant factors that I have taken into account. However, in the circumstances of this case, QE's refusal to entertain the proposed easement by consent offered by Zagros is not reasonably justified by such factors.
[83]
[137] Having regard to the foregoing, I am satisfied that it is appropriate to grant the relief sought by Zagros. The statutory right of use, by way of the proposed easement, is reasonably necessary for the effective use of Lot 67.
[84]
[138] Under s 180(13) of the PLA, the costs of the proceeding are payable unless special circumstances exist.
[139] Zagros contends special circumstances do exist and therefore QE should pay its costs, on the indemnity basis. The circumstances it points to are the unreasonable actions of Dr Quach in blocking the driveway; calling the police when Zagros' owners or occupants "trespassed" on the side driveway; and QE's unreasonable refusal to agree to the proposed easement by consent.
[140] I do not consider those matters amount to special circumstances that would justify departure from the ordinary position that pertains to applications of this kind, as stipulated by s 180(13). Whilst Dr Quach may have acted in an unneighbourly way by giving notice that the side driveway was no longer to be used by other persons and by blocking it with his car and erecting the metal barricade, he was legally entitled to do what he did. He is correct to assert that the land is QE's and it was entitled to withdraw any implied licence permitting others to enter upon its land. Whilst his installation of the dividing fence along the side driveway, thereby blocking off access to the rear carpark of Lot 67 might be seen as an egregious act of petulance and pigheadedness on his part, he was nevertheless once again legally entitled to take that action on behalf of QE. Albeit, given that Dr Quach and QE had already been put on notice about the prospect of the present application, it was unnecessary and unwise of Dr Quach to do what he did.
[141] In my view, given that a statutory factor that must be satisfied in every case is that, under s 180(5)(e) and (f), there has been an unreasonable refusal to agree to the proposed statutory use sought, I am unpersuaded that circumstances that would make such refusal unreasonable would, without more, constitute special circumstances for the purposes of s 180(13). Much would of course depend on the nature of the relevant circumstances in any given case, but I do not consider that is the case here.
[85]
[144] I will make the following orders:
Pursuant to s 180(1) of the Property Law Act 2023 (Qld), a statutory right of use, in the form of an easement of right of way, is imposed in respect of the burdened land, currently occupied by a driveway connecting Lot 66 on RP34330, situated at 542 Sandgate Road, Clayfield, Title Reference 51095591, with the benefited land, described as Lot 67 on RP34330, situated at 540 Sandgate Road, Clayfield, Title Reference 13168238, as depicted on sheet 1 of 3 of the survey plan, within exhibit "HZ-9"to the affidavit of Hiwa Zandi, affirmed 29 August 2025;
Pursuant to s 180(9) of the Property Law Act 2023 (Qld), by way of compensation, the Applicants are to pay the Respondent:
the sum of $10,000; and
the Respondent's reasonable costs of removing any fencing which is currently obstructing in any way the portion of land subject to the statutory right of use imposed by order 1;
The Respondent is to pay the Applicants' costs on the standard basis.
[7] The original older building constructed on Lot 67 remains. It is classified as a commercial character building within the Brisbane City Council, (BCC), City Plan. As such, any use or demolition of the building is regulated by the BCC. The shop front of the building is situated close to the footpath and road. There are no carparking facilities or spaces for a vehicle to park at the front. Lot 67 has a basic covered carport on the concreted area at the rear of the property as well as an uncovered space for parking two other cars. Access can only be gained to the rear carparking area by using the side driveway on Lot 66. Previously there was no impediment to the owners and occupiers of Lot 67 using the driveway for this purpose.
[8] Until recently, vehicles could access the rear of Lots 66 and 67 by entering the side driveway at the front of Lot 66, driving along it to the rear of the buildings on both lots and then turning either left or right to enter and park at the rear on the respective neighbouring properties.
[9] Since QE purchased Lot 66 things have changed.
[10] From early February 2025, Dr Quach has taken issue with people using the side driveway on his property. On about 3 February he left a letter in Zagros' letterbox and placed copies on three vehicles parked at the rear of Zagros's premises, advising that there was to be no public access or use of the side driveway to access the backyard of 540 Sandgate Road. He has at times blocked access to the side driveway by parking his car at the entrance or by erecting a temporary barrier across it.
[11] The owners and occupants of Lot 67 ignored the notice and continued to use the driveway to access the rear of their property. Tensions rose. The police were called. Efforts to resolve the ensuing impasse have proved futile. Dr Quach has refused Zagros' request to establish an easement by consent that would permit Zagros to use the side driveway on Lot 66.
[12] Eventually, in order to prevent its further use by the owners and occupants of Lot 67, Dr Quach constructed a wooden dividing fence along the length of the side driveway, just inside the boundary of his property. The new fence runs the entire length of the driveway all the way to the rear fence on Lot 66. Although a car might still be able to drive along the side driveway, the fence now blocks vehicles from turning left at the end so that they are unable to enter the concrete section and carparking area on Lot 67.
[13] Zagros says that it, and the occupants of its premises, are now unable to gain vehicle access to the property. It applies for orders granting it a statutory right of use, pursuant to s 180 of the Property Law Act 2023 (Qld), (PLA), in the form of an easement of right of way that would allow it to have use of the side driveway on QE's land.
[14] QE opposes the relief sought. It maintains that the side driveway is part of its land and is not a side driveway. It says it acquired indefeasible title when it became the registered owner of the property; that any implied licence that the owners and occupants may have had to use the side driveway has been revoked; and that anyone now accessing the driveway without permission is a trespasser.
[15] Against that background, the issues to be determined on this application are whether the requirements within s 180 of the PLA for granting an order imposing a statutory right of use have been satisfied; and, if so, whether it is appropriate for such relief to be granted. Amongst other things, that requires consideration of whether the proposed statutory right of use is reasonably necessary for the effective use of the land comprising Lot 67.
[29] The carport at the rear of Lot 67 has two spaces. Between settlement of Zagros' contract for the purchase of the lot and 3 February 2025, there have always been at least three cars parked in the backyard of Lot 67. Two of the cars belonged to Zagros' residential tenants at 540 Sandgate Road. The third car was a broken-down car owned by a friend of Mr Zandi's who did not reside at the premises.
[30] According to Mr Zandi, whilst there is a lock-up gate at the front of 542 Sandgate Road, it is not a garage or a part of a driveway. Rather, it is a gate that provides access to a storage shed under the front of Zagros' property.
[31] Mr Zandi exhibited to his first affidavit various point-in-time screenshots of Google Street Views, showing Lot 67 at various dates between January 2008 and September 2024. Mr Zandi further exhibited copies of photographs he took on 28 February 2025, showing the side driveway on Lot 66 and the backyards of Lots 66 and 67.
[32] The Google Street Views photographs show:
(g) there is no dividing fence between Lots 66 and 67; and
(h) there is a wooden dividing fence between Lots 66 and 65 at the rear of the properties. The fence has a gate which allows access from the rear of Lot 65 to the rear of Lot 66.
[47] On or around 15 June 2025, Revolution360 Pty Ltd, an outdoor advertising business, signed a commercial lease with Zagros to operate a poster signage business from the premises at 540 Sandgate Road. As part of its business, Revolution360 installed two signage panels on the side wall of the building. The two panels are approximately 4 metres x 1.4 metres in dimension and are located on the side wall of the building on Lot 67 that faces north to the side driveway, at the shopfront end, near the start of the driveway. On 9 August 2025, Revolution360 installed its first two outdoor advertising posters on the panels. The posters would ordinarily be visible by motorists and others travelling south along Sandgate Road or the footpath.
[48] On or around 15 July 2025, Mr Zeid Khaleefa Al Shamari, signed a commercial lease to operate a convenience store business from the shop premises located at Unit 1, 540 Sandgate Road. Since then, he has organised the fit-out of the shop and has paid a bond and rent for the premises. The fit-out of the shop cost him about $50,000. Mr Al Shamari had previously used the parking spaces at the back of the premises when he has attended the shop.
[49] On 25 August 2025, Dr Quach again erected the steel barrier across the side driveway.
[50] Between 25 and 29 August 2025, a fencing contractor was on site at Lot 66, installing a dividing boundary fence and gate along the side driveway. The installed fence now prevents anyone from driving in and out of the carport at the rear of Lot 67 and denies Zagros' tenants vehicle access to the premises. It also completely obscures Revolution360's advertising posters.
[51] On 30 August 2025, Mr Al Shamari visited the shop to deliver stock but was unable to access the car parking at the rear of Lot 67 because the dividing fence that had been built on Lot 66 blocked access. According to Mr Al Shamari, without access to the parking spaces at the back of the premises, he will not be able to run his convenience store as he and his staff need to access the parking spaces on a daily basis.
[52] Mr Al Shamari produced several photographs showing the rear of the premises, the dividing fence that has been installed along the side driveway, and the space between the building on Lot 67 and the dividing fence on the other side. The photographs of the dividing fence installed along the driveway show that it extends all the way along the driveway to the back fence on Lot 66. It completely blocks off any access from the side driveway to the rear of Lot 67, including to the carport and to the pedestrian entry between the metal railings that previously led from the driveway to the back stairs of the premises (which I infer was where Mr Rahman previously accessed his unit).
[53] According to Mr Zandi, without access to the rear of the premises, he, Zagros, and its tenants, do not have access to any lawful alternative parking option on Lot 67 or in the near vicinity. Sandgate Road is a busy main street within Clayfield and parking is generally unavailable on the road near Lot 67 due to parking restrictions and dense traffic.
[54] Furthermore, according to Mr Zandi, unless he, Zagros, and its tenants are able to use the side driveway it will be virtually impossible for the commercial and residential uses of the building on Lot 67 to continue. An alternate means of access to the carport at the rear of Lot 67 could only be obtained by partially demolishing the existing building on the lot. Due to the commercial character building overlay restrictions, Mr Zandi says he is prohibited from demolishing t he building.
[64] Although QE became the registered owner of the property on 28 January 2025, he entered into the contract on its behalf to purchase 542 Sandgate Road in June or July 2024, before Zagros could "gazump" him. He was told at that time that Zagros could not get finance and that was why the property was readvertised as "contract crashed". Settlement did not occur until January 2025 as the contract process was protracted.
[65] He was new to Brisbane and was moving up from Sydney. He had wanted to live at 542 Sandgate Road and had purchased it for that purpose. Between 28 January and 4 February 2025, he and his wife had every intention of moving there, and they were about to move when he met Mr Zandi on 16 February 2025. Although the answer was obvious, and implicit from his other evidence, he repeatedly refused to provide a direct answer when it was put to him that he had never lived at 542 Sandgate Road.
[66] He denied that he had purchased the property with the intention of renting it out for commercial gain through his corporate vehicle. He explained that he considered Mr Zandi was a violent person and he was therefore unable to live at the premises.
[67] He denied that since 28 January 2025, QE had a residential tenant, named "Kaplan", at 542 Sandgate Road. He named three other persons as the occupants approved for the tenancy at the premises. He said they had a lease which they had entered into around 13 or 14 March 2025 but the lease was terminated on 26 September 2025 for breaches of the lease, which he explained was partly because of "Kaplan" and partly because they had allowed trespassers onto the property. He denied that in future he intended to rent the property out to further tenants for income. He stated there were no current residential tenants at the property.
[68] Dr Quach denied that one of the photographs exhibited to Mr Zandi's first affidavit (at page 30), which showed the carport at the rear of the premises, was the lock-up garage that he had referred to in his affidavit evidence. He said that he had never witnessed anybody parking their cars underneath the carport shown in the photograph.
[69] By reference to another of Mr Zandi's photographs (page 22), Dr Quach denied that a brown section in the front of the shop window was a roller door. He said it was a piece of plywood. By further reference to the same photograph, Dr Quach gave evidence that to the right of the plywood section was the front door of the shop and that on the other side there was a screen, behind which was a driveway that led to underneath the building. He said cars would come out of there in the morning and that to the best of his knowledge it was used as a lock-up garage.
[70] Although not shown in the photograph, Dr Quach further explained that there was a door at the end of the driveway he described. He reiterated that he had seen cars come out of that driveway and in particular that he had seen a lady driving a blue car there one morning in August 2025. He denied suggestions that the entrance area he identified was not a garage and that the space was far too narrow for a car to fit through. He said that even up to now he had seen cars parked in the driveway, indicating that the driveway he was referring to was on the left-hand side of the photograph (page 22) to the left of a blue sign at the front of the premises. He said that was where the driveway was that led to the garage underneath the house, which he described as a "Queenslander style basement garage". He agreed that was the lock-up garage he had referred to in his affidavit. He explained that next to the driveway was a screen which separated the driveway from a pedestrian entrance.
[71] Dr Quach agreed that on 16 February 2025 he had attached a chain across the driveway on Lot 66, affixing it at one end to a post on his property and at the other end to a post on what he later learnt was Zagros' property. He agreed that the chain blocked access to the driveway and that was the purpose of putting it up.
[72] I note here that the "chain" referred to in this part of Dr Quach's evidence appears to be the chain link ends of the metal barrier Dr Quach had erected across the driveway.
[73] Dr Quach disagreed with the suggestion that later that day Mr Zandi had disconnected the chain from the posts, insisting that he "violently threw my fence down." He agreed that after this incident, he had called the police. He disagreed that he has asked them to charge Mr Zandi. He said that because they did not know where the boundary was the police had told him to "get a survey".
[106] Although Dr Quach calculated that the granting of the proposed easement would see him lose the use of about one-third of his land, I do not consider that to be a persuasive argument against the relief sought. Whilst Dr Quach may be roughly correct in terms of a pure calculation of the subject land area, the evidence establishes that the part of his land in question has always been used as a side driveway; that when QE acquired the property it was still being used for that purpose by the owners and occupants of Lots 66 and 67; and that the section of the land in question is a long, narrow section at the southern side of the property, which has been paved and designed to be used as a car driveway, whether shared or not.
[107] I do not accept Dr Quach's evidence that use and access of his driveway by the owners and occupants of Lot 67 would create an unreasonable burden for QE or the occupants of Lot 66. There will no doubt be some impost on the owner and occupants of Lot 66 as they will have to share the driveway with the owners and occupants of Lot 67 and will have to contend with vehicles coming in and out, which may well impact upon the quiet enjoyment of Lot 66. However, given what I have concluded with respect to the past and recent usage of the side driveway, until Dr Quach blocked access, the burden would be relatively slight in my view. Other than refusing to acknowledge that the area was a driveway (contrary to his own written notice that he provided to Lot 67) and engaging in hyperbole by suggesting that children would be unable to play cricket on the area, Dr Quach did not suggest there was any other use that might be made of the side driveway that would be impacted by an easement in favour of Lot 67. The proposed easement, if granted, would not prevent Dr Quach and his family from living at the property if that is what they chose to do.
[108] Dr Quach has of course installed a fence along the driveway that would need to be removed if the relief sought by Zagros is granted. No doubt some considerable time and expense was incurred by Dr Quach or QE to install the fence and further time and money would be expended if it was to be removed. Zagros proposes that it would pay QE's reasonable costs for removal of the fence.
[109] Whilst Dr Quach is also correct to say that upon registration of the transfer of the land, QE acquired indefeasible title over Lot 66, that is not the end of the matter. Section 180 of the PLA is an ameliorative provision, intended to provide the Court with the power to grant limited rights over land owned by another in certain circumstances, irrespective of the fact that the owner has indefeasible title. The Court may make such an order where the statutory criteria stipulated by s 180 are satisfied. If such an order is made, QE will of course retain its title over, and interest in, Lot 66, but certain limited rights will be granted to the owners of Lot 67 to access and use the side driveway on QE's land.
[110] On balance, I am satisfied that the statutory right of use sought is reasonably necessary for the effective use of the Lot 67 land.
[111] In reaching that conclusion, I make plain that I do not consider the fact that the dividing fence installed by Dr Quach obstructs the advertising posters installed by Revolution360 on the side of the building on Lot 67 is a relevant consideration. The statutory right of use sought is not reasonably necessary for that use of the land.
[125] Regardless, there is simply no evidence before me that there would be any diminution in the value of QE's land if an order is made granting the statutory right of use sought by Zagros. I do not accept that such loss or disadvantage would be suffered by QE as a matter of "common sense" as was suggested by Dr Quach.
[126] As I am satisfied that QE will suffer some loss or disadvantage if I make an order granting Zagros the statutory right of use sought, under s 180(9) of the PLA I would be required to also make an order that Zagros pay an amount to QE, by way of compensation, that I consider to be just in the circumstances.
[127] Zagros suggested an amount of $5,000 would be adequate. I do not agree that is sufficient. Whilst I do not think the loss or disadvantage that would be suffered by QE would be great, I nevertheless consider it appropriate that the amount of compensation should not only reflect the nature and extent of the loss and damage I have referred to above, but it should also factor in the repeated, unrestricted daily usage that Zagros' owners and occupants will likely make of the side driveway.
[128] I consider an amount of $10,000 would be just compensation for QE's loss and disadvantage in the circumstances.
[136] Dr Quach was not able to point to any other factors that might show that QE's refusal to agree to the proposed easement was reasonable conduct by it. In my view, it plainly was not. The owners and occupants of Lot 67 have a clear and obvious need to use the side driveway on Lot 66 to obtain vehicle and pedestrian access to the rear of their property. The land upon which the side driveway is situated has long been used for such a purpose. The evidence shows that until recently it continued to be used for that purpose. There is no reliable evidence of any other current or proposed use that would be materially impacted by the proposed easement.
[142] A more compelling reason advanced by Zagros as to why it should not pay QE's costs is that Dr Quach, who appears on behalf of QE with leave, is not a lawyer. Accordingly, QE has not incurred any legal costs as respondent to the proceeding. Dr Quach did not contend otherwise. Costs are only awarded as a partial indemnity for the professional legal costs a party has actually incurred in the conduct of the litigation.[1] In my view, that is a special circumstance that justifies departure from the costs order that would otherwise ordinarily be made in accordance with s 180(13).
[143] In my view, costs should follow the event. However, I am not persuaded that the circumstances are such that I should order QE pay Zagros' costs on the indemnity basis.