Why parking on a right of
way is a vexed issue
McGrath Sales had a lucky break recently when the Supreme
Court ruled that it was not liable for misleadingly
advertising: private off street and driveway parking.
The Court found that although the advertising was misleading
and deceptive because the parking was not exclusive (being
on land subject to a right of way), the purchaser had not
relied upon that description when purchasing the property,
and so McGrath Sales had not caused any loss to the
The decision is Hyder v McGrath Sales Pty Ltd 
NSWSC 1647, a decision by Justice Parker of the Supreme
Court of New South Wales on 30 November 2017.
The decision illustrates two aspects of the vexed issue
of parking on a right of way:
- The liability of a real estate agent to a purchaser
for misleading property descriptions;
- The right to park on land which is subject to a
right of way.
The liability of a real
estate agent to a purchaser for misleading property
McGrath Sales prepared the advertising copy for the
property, which was at 24 Ginahgulla Road in Bellevue Hill.
The website listings contained this description:
Nestled on a north facing 980sqm level parcel, this
luxury family residence offers a premier indoor/outdoor
lifestyle with Cranbrook School and The Scots College
within strolling distance. It is impeccably presented to
provide a home of style and elegance.
After descriptions of: Beautifully renovated, Flowing
layout, Lush garden, Swimming pool, Marble kitchen, Four
bedrooms, Three contemporary bathrooms and Pristine
* Double garage plus private off street and driveway
A site plan was displayed, which showed three ‘battle-axe’
lots, each having a ‘handle’ to the road. The ‘handles’ were
subject to registered rights of way. They were side by side
and were used as a common driveway for access by the owners
of the three lots. Because the common driveway was very wide
– 7.32 metres, there was room for open parking for up to 4
cars, tandem style, on the handle of the subject lot (Lot 4)
without obstructing the driveway. The site plan made
available to purchasers is reproduced at the end.
The purchaser gave evidence of being misled and deceived by
the property description. The purchaser’s evidence included
discussions with the real estate agents concerning two signs
marked ‘Private Parking’ on the wall next to the open
parking spaces on the driveway. It is relevant that there
was very little on-street parking in Ginahgulla Road.
The agent’s evidence was that the property’s most attractive
feature was its north facing aspect. ‘Private parking’ was a
positive but relatively less important selling point. This
was consistent with its low ranking on the website
description, the description of ‘plentiful’ parking in the
brochure and no mention of parking on the mail-our cards or
on the signboard.
The Court concluded that the description private off
street and driveway parking was misleading and deceptive
and contrary to the Australian Consumer Law.
In reaching that conclusion, the Court rejected arguments
put by McGrath Sales that:
- the description was an opinion – rejected because
the existence of the right of way was a legal fact which
was not disclosed;
- the owners of lot 4 were entitled to park on their
own land – rejected because the land was subject to a
right of way; and
- the description was covered by the disclaimer –
rejected because the disclaimer dealt with boundaries,
and not easements such as rights of way.
But the purchasers failed in their claim because they failed
to show causation. That is, although parking was a positive
factor, the Court found that “the real reason why Mr Hyder
bought the property is because of Mrs Hyder’s emotional
reaction to it. That emotional reaction would have derived
from features such as its aspect and its potential as a
family home, rather than the number of parking spaces.”
The Court went on to consider what loss in value it might
have compensated the purchasers for, had it found causation.
It set an amount of $150,000 in terms of value, plus stamp
duty payable on that amount. The Court took into
consideration the parking was not exclusive, even though it
was private in the sense it could not be accessed by the
public. The Court then reduced that amount by two-thirds
because of the failure by the Hyders to take reasonable care
in conducting pre-contractual enquiries and negotiations.
The right to park on land
which is subject to a right of way
The easements for carriageway in this case were in the
standard form set out in Schedule 4A of the Conveyancing
Act, 1919 (NSW) namely:
A right to pass and repass with or without horses and
other animals carts wagons carriages traction engines motor
cars and other vehicles laden or unladen over and along
the subject land.
This was the Court’s analysis:
“It is easy to see how the idea appears to have grown
up that the area was exclusively for parking for lot 4.
But the difficulty is that lot 4 has no greater right
over the use of the driveway than either of the other
lots. If the owners of lot 4 were entitled to
appropriate one-third of the driveway area to
themselves, except where a vehicle which is too wide to
pass down the other two-thirds of the area needs to get
past, then each of the owners of the other lots should
be entitled to do the same with their “handle” strip,
and that would be unworkable.
In my opinion, the effect of the various easements
and cross easements over the driveway area is to give
the three lot owners equivalent rights over the whole
area. It is no doubt open to the lot owners to park in
the “private parking” area where that does not interfere
with access to the properties served by the driveway.
But, in my view, the owners of lot 4 have no greater
legal right to park there than any other lot owner.”
(para 90, judgement)
“… they have no absolute right to park there at any
and all times.” (para 125, judgement)
Real estate agents need to check the accuracy of
descriptions of parking rights, if they are on the driveway
of a property, before including them in their marketing
Parking by an owner on their land which is subject to a
right of way is possible, but only with the consent of the
other owners of land who have the benefit of the right of