Legal Research
Cases
Evans v Cornish Nominees Pty Ltd

Evans v Cornish Nominees Pty Ltd

Case [2009] NSWSC 1295 27 November 2009

No judgment structure available for this case.

Type to search within this case.

CITATION: Evans v Cornish Nominees Pty Ltd [2009] NSWSC 1295

HEARING DATE(S): 25-29 May 2009

JUDGMENT DATE :
27 November 2009

JURISDICTION: Equity

JUDGMENT OF: White J

DECISION: 1. The amended summons be dismissed; 2. The plaintiff pay the defendant’s costs; 3. Exhibits may be returned after 28 days.

CATCHWORDS: REAL PROPERTY – easements – application for grant of right of carriageway under s 88K Conveyancing Act 1919 – easement not reasonably necessary for the effective use or development of land that would have the benefit of the easement – defendant cannot be adequately compensated for loss arising from imposition of easement – requirements of s 88K not made out – court would not exercise discretion to grant easement – application dismissed

LEGISLATION CITED: Conveyancing Act 1919 (NSW)
Water Management Act 2000 (NSW)
Kiama Local Environmental Plan 1996
Access to Neighbouring Land Act 2000 (NSW)
Noxious Weeds Act 1993 (NSW)
Environmental Planning and Assessment Act 1979 (NSW)
Threatened Species Conservation Act 1995 (NSW)
Land and Environment Court Act 1979 (NSW)

CATEGORY: Principal judgment

CASES CITED: Argyropoulos v Canterbury Municipal Council (1988) 66 LGRA 202
117 York Street Pty Ltd v Proprietors of Strata Plan No. 16123 (1998) 43 NSWLR 504
Debbula Pty Ltd v Owners – Strata Plan No. 6964 [2003] NSWSC 189; 12 BPR 22,617
Gittany v McDowell [2009] NSWSC 591
Khattar v Wiese [2005] NSWSC 1014; (2005) 12 BPR 23,235
Tesco Supermarkets Ltd v Nattrass [1972] AC 153
Lennard’s Carrying Co Ltd v Asiatic Petroleum Co Ltd [1915] AC 705
Swann & Anor v Spiropoulos & Ors [2006] NSWSC 860

PARTIES: Plaintiff: Heath Evans
Defendant: Cornish Nominees Pty Ltd

FILE NUMBER(S): SC 1760/08

COUNSEL: Plaintiff: J Trebeck
Defendant: J Webster SC with M Seymour

SOLICITORS: Plaintiff: Marriott Oliver
Defendant: Morton & Harris with RMB Lawyers

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WHITE J

Friday, 27 November 2009

1760/08 Heath Andrew Evans v Cornish Nominees Pty Ltd

JUDGMENT

1 HIS HONOUR: This is an application under s 88K of the Conveyancing Act 1919 (NSW) for the grant of a right of carriageway over the defendant’s land. The plaintiff and the defendant own adjoining land at Foxground, NSW, a region situated under the Illawarra escarpment between Kiama to the north and Berry to the south. The plaintiff’s land has an area of about 26.8 hectares. Most of the plaintiff’s land is in an area of high conservation value. It is largely not cleared, although there are some open areas consistent with earlier cattle grazing. It is not used as a farm. There is no building on it. There are no tracks. The plaintiff has occasionally visited the land but has no legal access to it except by licence from an adjoining landowner. He was aware of this when he purchased the land in 2003.

2 The defendant’s land is used as a farm for beef cattle. The farm has an area of about 76.2 hectares.

3 The plaintiff proposed various routes…

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 Evans v Cornish Nominees Pty Ltd

Details

AGLC: Evans v Cornish Nominees Pty Ltd [2009] NSWSC 1295
Case: [2009] NSWSC 1295
Decision Date: 27 November 2009

CaseChat Overview and Summary

Evans initiated proceedings against Cornish Nominees Pty Ltd in the Supreme Court of New South Wales, seeking the grant of a right of carriageway under section 88K of the Conveyancing Act 1919. The dispute centred on the necessity and fairness of imposing an easement on Cornish Nominees' land to benefit Evans' adjacent property. The central legal issue was whether the requirements of section 88K were satisfied, specifically whether the easement was reasonably necessary for the effective use or development of Evans' land and if Cornish Nominees could be adequately compensated for any loss arising from the imposition of the easement.

The court examined the nature and extent of the proposed easement, the impact it would have on Cornish Nominees' property, and the benefits it would confer on Evans' land. The court concluded that the easement was not reasonably necessary for the effective use or development of Evans' land. Furthermore, the court found that Cornish Nominees could not be adequately compensated for the loss arising from the imposition of the easement, as it would significantly impair the use and enjoyment of their property. Consequently, the court determined that the requirements of section 88K were not met, and it would not exercise its discretion to grant the easement.

Given that the requirements of section 88K were not satisfied, the court dismissed Evans' application for the grant of a right of carriageway. The decision underscored the importance of balancing the rights of neighbouring landowners and the necessity of easements to ensure they serve a legitimate and significant purpose.

Orders