Ashoil Pty Ltd v Fassoulas

In the case of Ashoil Pty Ltd v Fassoulas, the dispute centred around the easement of a right of way that was created in 1920 to provide access from the road frontage to the rear of a dominant tenement. The easement was established to allow for the use of the servient tenement, which was owned by the plaintiff. The pathway that formed the easement was constructed over the right of way in 1935, and from the early 1960s until the early 1980s, a paling fence was placed across the road frontage. After the pathway was constructed, padlocked gates were installed at both ends, which were closed after the business hours of the owner of the servient tenement. However, the gates were later abandoned, and deliveries to the servient tenement were made from the right of way. The tenants of the dominant tenement, along with other members of the public, used the pathway to access the road frontage from a public car park off the rear lane.

The legal issues that the court needed to address were whether the predecessors in title to the defendant, who owned the dominant tenement, had abandoned the easement, leading to its potential extinguishment under section 89(1)(b) of the Conveyancing Act 1919. Additionally, the court had to determine whether the easement should be deemed obsolete due to a change in the user of the dominant tenement or in the character of the neighbourhood, or if it impeded the reasonable use of the servient tenement of the plaintiff without providing a practical benefit to the owners of the dominant tenement, pursuant to section 89(1)(a) of the Conveyancing Act 1919.

The court examined the history and use of the easement, and found that there was no evidence of abandonment by the owners of the dominant tenement. The court also held that the easement was not obsolete and did not impede the reasonable use of the servient tenement, as the owners of the dominant tenement valued the attraction of the easement to prospective tenants, the access to light for windows, and the access for repairs of the building on the dominant tenement. Therefore, the court concluded that the easement should not be extinguished and was still valid and enforceable.

The court ordered that the easement remained in place and continued to be binding on the parties, with no party being able to claim its extinguishment or deem it obsolete. The owners of the dominant tenement were allowed to continue using the easement for the purposes outlined, while the owner of the servient tenement retained their rights to the reasonable use of their property.