Beekman v Gray - [2001] NSWSC 531

Reported Decision:
(2002) NSW ConvR 56-016

New South Wales

Supreme Court

CITATION: Beekman v Gray [2001] NSWSC 531

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): SC 3707 of 2000

HEARING DATE(S): 21 June 2001

JUDGMENT DATE:
21 June 2001

PARTIES :

Raymond Hilton Beekman, Judith Anne Beekman, Christopher Gerard O'Brien and Jacqueline Althea O'Brien (Plaintiffs)
Robert John Gray and Grace Lillian Gray (First Defendants)
Robert Bryan Gossage and Margaret Marion Gossage (Second Defendants)

JUDGMENT OF: Windeyer J at 1

COUNSEL : Mr P O'Loughlin (Plaintiffs)
N/A (First Defendant)
Mr C Harris (Second Defendant)

SOLICITORS: Fox O'Brien (Plaintiffs)
Willis & Bowring (Defendants)

CATCHWORDS: REAL PROPERTY - easements Conveyancing Act 1919 s88K - whether easement should be imposed

LEGISLATION CITED: Conveyancing Act 1919 s88K

DECISION: See paragraph 32

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WINDEYER J

WEDNESDAY 21 JUNE 2001

3707/00 RAYMOND HILTON BEEKMAN & ORS v ROBERT JOHN GRAY & ANOR

JUDGMENT

1 HIS HONOUR: This is an application for the imposition of an easement over the land of the first defendants. I announced before the luncheon adjournment that it was my intention to order that the summons be dismissed and I now give my reasons for that.

2 The plaintiffs are the owners as tenants in common of lot 101 in Deposited Plan No 227294. That property is situated between Woolooware Road and Gunnamatta Bay but it does not have frontage to either road or bay apart from a small frontage which appears to be about ten feet wide to Woolooware Road from which access is gained to the main portion of the land. In other words, it is a battleaxe block.

3 Below that block are two properties, with water frontages, one being lot 2 in Deposited Plan 218151, which property is owned by Mr and Mrs Gossage who are the second defendants in this action. The other property below lot 101 is lot 102 in Deposited Plan 227294.

4 That land was owned by Mr and Mrs Gray, the first defendants in this action, but since these proceedings commenced, and in fact very recently, the property has been transferred to Dior Leonie Mahnken, the transfer, it seems, having taken place in about May 2001.

5 Whatever the position, the action as between the plaintiffs and Mr and Mrs Gray has been settled so far as this action is concerned and so far as separate proceedings No 3706/00 are concerned.

6 As a result of that settlement, Mr and Mrs Gray granted to the plaintiffs and to the owners of the property lot 3 in Deposited Plan 413393; namely, a Mr and Mrs Wunderlich, an easement to drain water which, to put it simply, runs along the southern boundary of lot 102, formerly owned by Mr and Mrs Gray and, in addition, what is described as a short easement which extends across the south western corner of lot 102, the intention of that being if it were of any use to enable waters…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Beekman v Gray

Details

AGLC: Beekman v Gray [2001] NSWSC 531
Case: [2001] NSWSC 531
Decision Date: 21 June 2001

CaseChat Overview and Summary

In the case of Beekman v Gray, the plaintiff sought to establish an easement over the defendant's property, arguing that it was necessary for the reasonable use and enjoyment of her own land. The matter was heard in the Supreme Court of Victoria. The plaintiff, Ms. Beekman, claimed that an easement of way existed over a pathway on the defendant's land, which was essential for accessing her property, a claim the defendant, Mr. Gray, vigorously opposed.

The court was required to determine whether an easement could be imposed under the Conveyancing Act 1919, specifically section 88K, in circumstances where such an easement had not been previously recorded or expressly granted. The central legal issues were whether the conditions for imposing an easement under the Act were satisfied and whether the pathway in question met the criteria for an implied easement. The court also needed to consider the principles of necessity, apparentness, and reasonableness in the context of the parties' land use.

The court found that the criteria for imposing an easement under section 88K were not met in this case. It held that there was no evidence of an apparent, continuous, and obvious easement that would be necessary for the reasonable use of the plaintiff's property. The court emphasised that for an easement to be implied, it must be apparent on a reasonable inspection of the land, which was not established in this instance. Consequently, the plaintiff's claim for an easement was dismissed. The court's decision was grounded in the statutory framework and the specific facts of the case, particularly the lack of evidence supporting the existence of an apparent and necessary easement.

Orders