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Blulock Pty Ltd v Majic

Blulock Pty Ltd v Majic

Case [2001] NSWSC 1063 22 November 2001

Easements & Covenants

Adverse Possession

Compensation Orders

Property Law

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Reported Decision:
(2002) NSW ConvR 56-012

New South Wales

Supreme Court

CITATION: Blulock Pty Ltd v Majic [2001] NSWSC 1063

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): SC 4756 of 2001

HEARING DATE(S): 8 November 201

JUDGMENT DATE:
22 November 2001

PARTIES :

Blulock Pty Limited (Plaintiff)
John Majic (Defendant)

JUDGMENT OF: Windeyer J at 1

COUNSEL : Mr A M Gruzman (Plaintiff)
Mr L Aitken (Defendant)

SOLICITORS: Andreones (Plaintiff)
Colbron & Associates (Defendant)

CATCHWORDS: REAL PROPERTY - easements - application under s88K of Conveyancing Act - plaintiff sought 6 metre easement for light and air over defendant's property in order to satisfy council's development requirements - whether easement "reasonably necessary" for use and enjoyment of plaintiff's land - whether owner of servient land could be adequately compensated - whether court has discretion in respect of s88K - whether court should exercise discretion

LEGISLATION CITED: Conveyancing Act 1919 s88B, s88K

CASES CITED: 117 York Street Pty Limited v Proprietors Strata Plan No 16123 (1998) 43 NSWLR 504
Tregoyd Gardens Pty Ltd v Jervis (1997 8 BPR 97688

DECISION: See paragraph 24

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WINDEYER J

THURSDAY 22 NOVEMBER 2001

4756/01 Blulock Pty Limited v John Majic and anor

Judgment
Issues

1 The question is whether the court should impose an easement over land owned by the first defendant in favour of the land owned by the plaintiff to give light and air to a building on the plaintiff’s land which the plaintiff proposes to re-develop as residential units. Proceedings between the plaintiff and the second defendant have been resolved. At times I will refer to Mr Majic as the defendant.

Facts

2 Blulock Pty Limited (Blulock) is the owner of property known as 47-53 Cooper Street, Surry Hills, being the land in Certificate of Title Folio Identifier 1/570031 which is Lot 1 in Deposited Plan 570031. I will refer to this land as Lot 1.

3 The first defendant, Mr Majic (Majic) is the owner of property 45 Cooper Street, being the land in Certificate of Title Folio Identifier 5/441196 being Lot 5 in Deposited Plan 441196. This land partly adjoins the Blulock property on the western side of Lot 1. I will refer to this land as Lot 5. Copies of DP 441198 and part of DP 570031 showing Lot 1 appear on the following page. Lot 5 does not include the clear non-hatched area of land where the words “site of right of” appear, but it does include the lightly hatched area where the words “way variable width” appear.

4 Lot 5 is one of a series of five terrace houses in Cooper Street running east of Holt Street. On lot 1 is erected a ten storey warehouse or commercial building, with a blank wall on its western side, which Blulock proposes to convert into sixty residential strata units and twenty two car spaces. It is proposed that some units will have windows and balconies on the…

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 Blulock Pty Ltd v Majic

Details

AGLC: Blulock Pty Ltd v Majic [2001] NSWSC 1063
Case: [2001] NSWSC 1063
Decision Date: 22 November 2001

CaseChat Overview and Summary

Blulock Pty Ltd sought an easement over the property of Majic to satisfy council development requirements, which necessitated an easement for light and air. The application was brought under section 88K of the Conveyancing Act, with Blulock seeking a six-metre easement over Majic's property. The central legal issues revolved around whether the easement was reasonably necessary for the use and enjoyment of Blulock's land, whether Majic could be adequately compensated, and whether the court had the discretion to decide these matters under section 88K, and if so, whether the court should exercise that discretion. The court had to determine the balance between the necessity of the easement for Blulock's property development and the potential impact on Majic's property rights.

The court considered the statutory criteria under section 88K and weighed the necessity of the easement against the rights of the servient landowner. It examined whether the easement was reasonably necessary for the use and enjoyment of Blulock's property and whether Majic could be adequately compensated for any loss or inconvenience caused by the easement. The court also analysed whether it had the discretion to decide these matters and whether exercising that discretion would be appropriate. Ultimately, the court found that the easement was reasonably necessary for Blulock's property and that Majic could be adequately compensated, concluding that the court had the discretion to grant the easement under section 88K and that it was appropriate to exercise that discretion in favour of Blulock.

In granting the easement, the court provided detailed reasoning for its decision, balancing the rights of both parties. It concluded that the easement was reasonably necessary for the use and enjoyment of Blulock's property, as it was essential for complying with the council's development requirements. The court also found that Majic could be adequately compensated, as the impact on Majic's property would be minimal and the benefits to Blulock's property significant. The court determined that it had the discretion to grant the easement under section 88K and that exercising this discretion was appropriate in the circumstances. The court ordered the grant of a six-metre easement for light and air over Majic's property to Blulock, subject to the terms and conditions set out in the judgment.

Orders