Bryant v Crompton (No 2) - [2024] NSWSC 586

Supreme Court

New South Wales

Medium Neutral Citation: Bryant v Crompton (No 2) [2024] NSWSC 586
Hearing dates: 08 May 2024
Decision date: 08 May 2024
Jurisdiction: Equity - Real Property List
Before: Peden J
Decision:
See [24]

Catchwords:
LAND LAW — Easements — Creation of easements — Creation by order of court — Where court found proposed easement was reasonably necessary and substantially preferable to defendant’s alternative —Where court ordered parties to confer on appropriate terms of easement and costs order — Where parties could not agree — Where Court determines terms of easement
LAND LAW — Easements — Costs — Whether defendant acted unreasonably during course of proceedings — Whether circumstances warrant departure from 88K(5) Conveyancing Act 1919 (NSW)

Legislation Cited:
Conveyancing Act 1919 (NSW), s 88K

Cases Cited:
Bryant v Crompton [2024] NSWSC 238
Crawley v Baxter (No 3) [2023] NSWSC 955
Jeffrey v Adams [2023] NSWSC 1270
Studholme v Rawson (2020) 102 NSWLR 490
Swann v Spiropoulos [2006] NSWSC 1016

Texts Cited:
Nil

Category: Costs
Parties: Christopher John Bryant (Plaintiff)
Nicholas Anthony Crompton (First Defendant)
Keryn Michelle Denichilo-Harrison (Second Defendant)
Registrar-General (Third Defendant)
Representation:
Counsel:
M Gunning (Plaintiff)
R Sud (First and Second Defendants)
Solicitors:
Parker & Kissane (Plaintiff)
Somerville Laundry Lomax (First and Second Defendants)

File Number(s): 2023/315855
Publication restriction: Nil

Ex Tempore JUDGMENT (Revised)

On 12 March 2024, I delivered judgment in this matter, granting the plaintiff an easement over the defendants’ land in Duck Creek: Bryant v Crompton [2024] NSWSC 238 (Bryant v Crompton). By way of a high-level summary, findings were made to the following effect:

The proposed easement, referred to as “Option A”, was reasonably necessary or substantially preferable to the proposed alternative, “Option C”, which was advocated for by the defendants: Bryant v Crompton at [38], [48].

It was appropriate to exercise the power in s 88K(1) Conveyancing Act 1919 (NSW) to grant an easement over Option A of the defendants’ land in favour of the plaintiff, providing that:

Compensation was to be determined at a future date: Bryant v Crompton at [49].

Appropriate terms of the easement were made to minimise the impact of the plaintiff’s use of the defendants’ land: Bryant v Crompton at [50].

Before the easement could be registered, the plaintiff obtain a registrable easement from the owner of Lot 21, Mr Tierney: Bryant v Crompton at [9].

Unfortunately, the parties, who were neighbours, were unable to agree on the appropriate terms of the easement or the appropriate costs orders. Detailed written submissions were prepared, and an oral hearing was necessary.
There is no dispute that the plan for the easement that has been granted is that prepared by Tony Denny, attached to the report of Stephen McElroy dated 10 February 2023, which will be “Annexure A” to the easement. Compensation must still be determined. No orders have been made. No orders have been proposed by the parties and I will make orders progressing the matter.
I predominately have adopted the plaintiff’s submissions and…

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 Bryant v Crompton (No 2)

Details

AGLC: Bryant v Crompton (No 2) [2024] NSWSC 586
Case: [2024] NSWSC 586
Decision Date: 08 May 2024

CaseChat Overview and Summary

In Bryant v Crompton (No 2), the dispute before the court involved the creation of an easement on land. The plaintiff sought to establish an easement over the defendant's property to provide access to the plaintiff's land, which had been landlocked by the defendant's actions. The case was heard by the Supreme Court of New South Wales, which had to decide the terms and conditions of the proposed easement.

The court was required to determine whether the proposed easement was reasonably necessary and substantially preferable to the defendant's alternative proposal. The court also needed to consider whether the defendant had acted unreasonably during the course of the proceedings and if there were circumstances that warranted a departure from the standard costs provisions under section 88K(5) of the Conveyancing Act 1919 (NSW). The court found that the proposed easement was necessary and preferable and ordered the parties to confer on the appropriate terms of the easement.

The court's reasoning involved a detailed analysis of the evidence presented and the competing interests of the parties. The court found that the proposed easement was essential for the plaintiff's access to their property and that the defendant's alternative proposal was less favourable. The court also considered the conduct of the parties during the proceedings and found that the defendant had acted unreasonably, warranting a departure from the standard costs provisions. Ultimately, the court determined the terms of the easement and made a costs order against the defendant.

The final orders of the court included the creation of an easement over the defendant's land for the benefit of the plaintiff, with specific terms set by the court. The court also ordered the defendant to pay the plaintiff's costs of the proceedings, taking into account the defendant's unreasonable conduct.

Orders