Effeney v Millar Investments Pty Ltd

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.