Arcidiacono v The Owners - Strata Plan No 17719; Arcidiacono v The Owners - Strata Plan No 61233

The applicants, Mr. and Mrs. Arcidiacono, sought to appeal decisions of the primary judge concerning the creation of easements over land owned by the respondents, The Owners - Strata Plan No 17719 and The Owners - Strata Plan No 61233. The dispute centred on the Arcidiaconos' claim to acquire easements by prescription and by order of the court under section 88K of the *Conveyancing Act 1919* (NSW). The primary judge had refused to grant the easements, and the Arcidiaconos sought to overturn these findings on appeal.

The Court of Appeal was required to determine whether the primary judge erred in refusing to recognise easements by prescription, particularly in circumstances where the servient owners were unknown and the question of their acquiescence in the use of the land arose. Furthermore, the court had to consider whether the primary judge correctly applied the criteria under section 88K of the *Conveyancing Act 1919* (NSW) in refusing to grant the easements, specifically whether the proposed easements were reasonably necessary for the use and enjoyment of the dominant tenements and whether they were inconsistent with the public interest.

In relation to the claim for easements by prescription, the Court of Appeal affirmed that acquiescence by the servient owner is a necessary element for the acquisition of such easements. The court found no error in the primary judge's conclusion that this element had not been established. Regarding the section 88K applications, the Court of Appeal reiterated that decisions under this section involve a broad evaluative judgment, and appellate courts should exercise restraint in interfering with such decisions unless there is a clear error. The court found that the primary judge had properly considered the relevant factors and that the Arcidiaconos had not demonstrated that the proposed easements were reasonably necessary or that the primary judge's refusal was otherwise erroneous.

Leave to appeal was granted, but the appeals were ultimately dismissed with costs.