Durian (Holdings) Pty Ltd v Cavacourt Pty Ltd

The New South Wales Court of Appeal considered an appeal concerning an easement for a right of way. The appellant, Durian (Holdings) Pty Ltd, sought the extinguishment of an easement registered over its land, which benefited the respondent, Cavacourt Pty Ltd. The dispute centred on whether the easement had become obsolete, thereby justifying its extinguishment under section 89(1)(a) of the *Conveyancing Act 1919* (NSW).

The primary legal issue before the Court of Appeal was whether the easement for a right of way had become obsolete due to a lack of use by the dominant tenement. This required the Court to determine the criteria for establishing obsolescence under the relevant legislative provision and to assess whether the evidence presented met those criteria.

The Court of Appeal found that the easement had indeed become obsolete. Their Honours reasoned that the dominant tenement had not used the right of way for a considerable period, and the circumstances indicated that it was no longer necessary or practical for the dominant tenement to utilise the easement. The Court applied the principles established in cases concerning the extinguishment of easements under section 89(1)(a) of the *Conveyancing Act 1919*, focusing on the intention of the parties at the time the easement was created and the current practical utility of the easement.

Consequently, the Court of Appeal allowed the appeal, setting aside the declarations and orders made by the primary judge. In their place, the Court ordered the extinguishment of the easement and directed the cross-defendant to pay the cross-claimant's costs.