Legal Research
Cases
Castle v Achdjian

Castle v Achdjian

Case [2022] NSWSC 1340 4 October 2022

Easements & Covenants

No judgment structure available for this case.

Type to search within this case.

Supreme Court

New South Wales

Medium Neutral Citation: Castle v Achdjian [2022] NSWSC 1340
Hearing dates: 19-20 September 2022
Date of orders: 4 October 2022
Decision date: 04 October 2022
Jurisdiction: Equity
Before: Darke J
Decision:
Application for extinguishment of right of carriageway refused. Orders to be made for removal of obstructions of right of carriageway.

Catchwords:
REAL PROPERTY – easements – extinguishment of easements – Cross-Claim seeking extinguishment of right of carriageway pursuant to Conveyancing Act 1919 (NSW) s 89(1) on the grounds of obsolescence, impediment of reasonable user of servient tenement, or abandonment – where right of carriageway has never been used as a means of vehicular access to the dominant tenement – where several obstructions have been erected on right of carriageway – where evidence suggests that right of carriageway has been used historically only as a footway – whether right of carriageway obsolete in circumstances where Council approval for construction of a driveway is very unlikely to be given – whether it is possible to reasonably enjoy servient tenement while right of carriageway subsists – whether acts or omissions of previous dominant owners evinced an intention to abandon right of carriageway in whole or in part – held that right of carriageway not obsolete, inconsistent with reasonable use of servient tenement, or abandoned in whole or in part – held further that dominant owners would suffer a substantial injury if right of carriageway were extinguished – defendants to be ordered to remove obstructions placed on right of carriageway without dominant owners’ assent

Legislation Cited:
Conveyancing Act 1919 (NSW), s 88B, s 89(1), s 181A(1), sch 8

Cases Cited:
Ashoil Holdings Pty Ltd v Fassoulas (2005) 12 BPR 23,525; [2005] NSWCA 80
Coffill v Lagudi Holdings Pty Ltd (2016) 18 BPR 36,483; [2016] NSWSC 1764
Durian (Holdings) Pty Ltd v Cavacourt Pty Ltd (2000) 10 BPR 18,099; [2000] NSWCA 28
Finlayson v Campbell (1997) 8 BPR 15,703
Guth v Robinson (1977) 1 BPR 9209
Grill v Hockey (1991) 5 BPR 11,421
Heaton v Loblay (1959) 60 SR (NSW) 332
Keefe v Amor [1965] 1 QB 334
Keewatin Power Co Ltd v Lake of the Woods Milling Co Ltd [1930] AC 640
Mogensen v Portuland Developments Pty Ltd (1983) NSW ConvR 55-116
Pieper v Edwards [1982] 1 NSWLR 336
Powell v Langdon (1944) 45 SR (NSW) 136
Proprietors Strata Plan No 9968 v Proprietors Strata Plan No 11173 [1979] 2 NSWLR 605
Prospect County Council v Cross (1990) 21 NSWLR 601
Re Mason and the Conveyancing Act [1962] NSWR 762
Re RK Roseblade and VM Roseblade and the Conveyancing Act; Re KS Foenander and the Conveyancing Act [1964-5] NSWR 2044
Sertari Pty Ltd v Nirimba Developments Pty Ltd (2008) NSW ConvR 56-200; [2007] NSWCA 324
Sheppard v Smith [2021] NSWSC 1207
Sheppard v Smith [2022] NSWCA 167
Treweeke v 36 Wolseley Road Pty Ltd (1973) 128 CLR 274
Trewin v Felton (2007) 13 BPR 24,579; [2007] NSWSC 851
Tujilo Pty Ltd v Watts (2005)…

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 Castle v Achdjian

Details

AGLC: Castle v Achdjian [2022] NSWSC 1340
Case: [2022] NSWSC 1340
Decision Date: 04 October 2022

CaseChat Overview and Summary

The matter of Castle v Achdjian involved a dispute over the extinguishment of an easement of carriageway between the parties. The dispute was heard in the Supreme Court of New South Wales. The plaintiff, Castle, sought to extinguish the right of carriageway over the defendant's property, Achdjian, arguing that the easement was obsolete, impeded the reasonable use of the servient tenement, or had been abandoned. The right of carriageway had never been used as a means of vehicular access to the dominant tenement, and several obstructions had been erected on the right of carriageway. Evidence suggested that the right of carriageway had historically only been used as a footway. The plaintiff argued that the right of carriageway was obsolete in circumstances where council approval for the construction of a driveway would be very unlikely to be given and that it was inconsistent with the reasonable use of the servient tenement. The plaintiff also argued that the acts or omissions of previous dominant owners evidenced an intention to abandon the right of carriageway in whole or in part.

The court had to determine whether the right of carriageway was obsolete, inconsistent with the reasonable use of the servient tenement, or abandoned in whole or in part. The court also had to consider whether the dominant owners would suffer a substantial injury if the right of carriageway were extinguished. The court found that the right of carriageway was not obsolete, inconsistent with the reasonable use of the servient tenement, or abandoned in whole or in part. The court found further that the dominant owners would suffer a substantial injury if the right of carriageway were extinguished. The court ordered the defendants to remove the obstructions placed on the right of carriageway without the dominant owners' assent.

The court's decision was based on a thorough analysis of the evidence and applicable law. The court found that the right of carriageway was not obsolete, as the plaintiff had not demonstrated that it was impossible to use the right of carriageway for its intended purpose. The court found further that the right of carriageway was not inconsistent with the reasonable use of the servient tenement, as the defendants had not demonstrated that the right of carriageway impeded their ability to use their property in a reasonable way. The court found further that the right of carriageway had not been abandoned in whole or in part, as there was no evidence of an intention to abandon the right of carriageway. The court found finally that the dominant owners would suffer a substantial injury if the right of carriageway were extinguished, as they would be unable to access their property by foot or vehicle. The court ordered the defendants to remove the obstructions placed on the right of carriageway without the dominant owners' assent.

Orders