Ashoil Holdings Pty Ltd v Fassoulas

Ashoil Holdings Pty Ltd (the applicant) sought to extinguish a right of way benefiting the respondent, Mr Fassoulas, over land owned by the applicant. The dispute concerned whether the right of way, registered on the title under the *Real Property Act 1900* (NSW), had been abandoned or should be deemed obsolete. The matter came before the Court of Appeal of New South Wales.

The primary legal issues before the court were whether the right of way had been abandoned, evidenced by non-user, the availability of alternative access, or obstruction, and whether it should be deemed obsolete due to changes in the neighbourhood's character or the dominant tenement's user. The court was required to consider the provisions of section 89(1)(a) and (b) of the *Conveyancing Act 1919* (NSW) and whether the acts or omissions of predecessors in title were relevant to establishing abandonment.

The court reasoned that establishing abandonment of a registered easement under the *Real Property Act* requires more than mere non-user; it necessitates evidence of a clear intention to abandon. The court found that the applicant had not discharged the onus of proving such an intention. Furthermore, the court considered that the easement had not become obsolete, as the changes in the neighbourhood and the dominant tenement's user did not render it practically useless or fundamentally different from its original purpose. The court also noted that the predecessors in title's actions were relevant to the question of abandonment.

The appeal was dismissed, and the applicant was ordered to pay the respondent's costs.