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Effeney v Millar Investments Pty Ltd

Effeney v Millar Investments Pty Ltd

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Case Copied 8 July 2011 79 min read

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Supreme Court

New South Wales

Medium Neutral Citation: Effeney v Millar Investments Pty Ltd & ors [2011] NSWSC 708
Hearing dates: 7 - 12 April 2011
Decision date: 08 July 2011
Jurisdiction: Equity Division
Before: Ward J
Decision:
Application for extinguishment or modification of easement benefiting third defendant dismissed

Catchwords: REAL PROPERTY - easements - right of carriageway - application for extinguishment or modification of easement benefiting local Council - whether easement has been abandoned pursuant to s 89(1A) and (1)(b) of the Conveyancing Act 1919 (NSW) - whether easement is obsolete pursuant to s 89(1)(a) - whether there would be substantial injury to the Council in the case of extinguishment pursuant to s 89(1)(c) - whether order for extinguishment could be made subject to a condition for relocation of easement - HELD - application dismissed - no intentional abandonment of easement established - doubt as to whether non-use for 20 years - even if deeming provision applied and no use for 20 years, discretion would not be exercised in favour of extinguishment - easement continues to serve useful purpose and has not become obsolete - additional costs likely to be incurred by the Council should extinguishment take place means that it cannot be said that extinguishment would cause no substantial injury - order for extinguishment subject to a condition for relocation would amount to modification of easement outside the Court's power
CIVIL PROCEDURE - whether for purposes of deeming provision in s 89(1A) an application is made when summons filed or when plaintiff moves on motion - HELD - obiter dicta - deeming provision can operate provided that as at the date when the plaintiff moves on the application, there has been at least 20 years of non-use
Legislation Cited: Conveyancing Act 1919 (NSW)
Real Property Act 1900 (NSW)
Real Property and Conveyancing Legislation Amendment Bill 2009
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Alliance Economic Investment Co. Limited v. Berton [1923] 92 LJKB 750
Ashoil Holdings Pty Ltd v Fassoulas [2005] NSWCA 80
Ashoil Pty Ltd v Fassoulas & Ors [2004] NSWSC 554
Benn v Hardinge (1992) 66 P & CR 246
Breskvar v Wall (1971) 126 CLR 376
Castagna v Great Wall Resources Pty Limited [2005] NSWSC 942
Durian (Holdings) Pty Ltd v Cavacourt Pty Ltd (2000) 10 BPR 18,099
Figgins Holdings Pty Ltd v SEAA Enterprises Pty Ltd (1999) 196 CLR 245
Frasers Lorne Pty Ltd v Joyce Goldsworthy Burke & Ors [2008] NSWSC 743
Gotobed v Pridmore (1970) 115 SJ 78
Gower v Woodman Sales Pty Ltd [1988] 2 Qd R 15
Guth v Robinson (1977) 1 BPR 9209
Harris v Flower (1904) 74 LJ Ch 127
Truman, Hanbury, Buxton and Company Limited's Application [1956] 1 QB 261
Leue v Reynolds (1986) 4 NSWLR 590
Loclot Pty Limited v Pullen [2003] 56 NSWLR 592
Long v Michie [2003] NSWSC 233
Markos v OR Autor Pty. Limited [2007] NSWSC 810
Neighbourhood Association DP No 285220 v Moffat [2008] NSWSC 54
Nickerson v Barraclough &…

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.

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Details

Case: [2011] NSWSC 708
Decision Date: 08 July 2011

CaseChat Overview and Summary

The case of Effeney v Millar Investments Pty Ltd involved an application by the respondent, Millar Investments, to extinguish or modify an easement benefiting the local council. The easement was over a right of carriageway on the respondent's property, which had not been used for over 20 years. Millar Investments argued that the easement had been abandoned, was obsolete, or that there would be no substantial injury if it were extinguished. The applicant, Effeney, sought to prevent the extinguishment or modification of the easement, arguing that it was still in use and served a useful purpose. The matter was heard in the Supreme Court of New South Wales.

The central legal issues in the case were whether the easement had been abandoned under section 89(1A) and (1)(b) of the Conveyancing Act 1919 (NSW), whether it was obsolete under section 89(1)(a), and whether its extinguishment would cause substantial injury under section 89(1)(c). Additionally, the court had to consider whether an order for extinguishment could be made subject to a condition for the relocation of the easement. The court was also asked to clarify whether the deeming provision in section 89(1A) would apply if the application was made when the summons was filed or when the plaintiff moved on the application.

In dismissing the application, the court found that no intentional abandonment of the easement had been established. Even if the deeming provision applied, and the easement had not been used for 20 years, the court would not exercise its discretion in favour of extinguishment. The easement continued to serve a useful purpose and had not become obsolete. The court also found that extinguishing the easement would likely cause additional costs to the council, meaning that it could not be said that extinguishment would cause no substantial injury. An order for extinguishment subject to a condition for relocation would amount to a modification of the easement outside the court's power. The court also made an obiter observation that the deeming provision could operate provided that, as at the date when the plaintiff moved on the application, there had been at least 20 years of non-use.

The court dismissed the application, finding that the easement had not been abandoned, was not obsolete, and that extinguishment would cause substantial injury. The court also found that it did not have the power to order the extinguishment of the easement subject to a condition for relocation. As a result, the easement continued to exist, and the council retained its right of carriageway over the respondent's property.

Orders