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Frasers Lorne Pty Ltd v Burke

Frasers Lorne Pty Ltd v Burke

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Case Copied 18 July 2008 25 min read

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CITATION: Frasers Lorne Pty Ltd v Joyce Goldsworthy Burke & ors [2008] NSWSC 743

HEARING DATE(S): 16 June 2008

JUDGMENT DATE :
18 July 2008

JURISDICTION: Equity Division
Expedition List

JUDGMENT OF: Brereton J

DECISION: Summons dismissed with costs

CATCHWORDS: REAL PROPERTY – EASEMENTS – (NSW) Conveyancing Act 1919, s 89 – application for modification of easement – where plaintiff proposes to use its land for residential development – where plaintiff proposes modification of driveway easement enjoyed by dominant land to comply with Development Approval issued by local council – where proposed modification would nearly halve the width of the easement along half of its length – whether easement unmodified impedes the reasonable user of servient land – whether easement unmodified secures a practical benefit to the dominant land – whether modification of easement would not substantially injure the dominant owners – discretionary considerations – where modification was to facilitate commercial exploitation of servient land and plaintiff sought consent from dominant owners long after construction commenced and despite warnings from council.

LEGISLATION CITED: (NSW) Conveyancing Act 1919, s 89

CATEGORY: Principal judgment

PARTIES: Frasers Lorne Pty Ltd (plaintiff)
Joyce Goldsworthy Burke (first plaintiff)
Kim Huong Dinh (second defendant)
Donald Keith Martin (third defendant)

FILE NUMBER(S): SC 5065/07

COUNSEL: Mr T S Hale SC w Mr M A Izzo (plaintiff)
Ms V Culkoff (defendants)

SOLICITORS: Holding Redlich (plaintiff)
Steven Klinger (defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
EXPEDITION LIST

BRERETON J

Friday, 18 July 2008

5065/07 Frasers Lorne Pty Ltd v Joyce Goldsworthy Burke & 2 ors

JUDGMENT

1 HIS HONOUR: Deposited Plan 547371, registered on 17 March 1971, created a four-lot subdivision on the northern side of Lorne Avenue, which runs approximately east/west between the North Shore railway line and the Pacific Highway at Killara. Fronting Lorne Avenue were Lots 1 (to the west) and 4 (to the east), while Lots 2 and 3 were battleaxe allotments – Lot 2 to the rear (north) of Lot 1, and Lot 3 to the rear of Lot 4 – with their access handles, each 3.66 metres in width, adjacent to each other between Lots 1 and 4. Rights of carriageway were created over each access handle – the handle of Lot 2 was burdened by a right of carriageway in favour of Lots 1, 3 and 4; and the handle of Lot 3 was burdened by a right of carriageway in favour of Lots 1, 2 and 4 – so that each lot enjoyed access over a carriageway 7.32 metres wide in all.

2 The first defendant Mrs Joyce Goldsworthy Burke is the registered proprietor of Lot 4 (23 Lorne Avenue), and the second and third defendants Ms Kim Huong Dinh and Mr Donald Keith Martin are the registered proprietors of Lot 3 (25 Lorne Avenue). Formerly, premises known as 27 Lorne Avenue stood on Lot 1, and 25A Lorne Avenue stood on Lot 2. On or about 5 May 2006, Lots 1 and 2 were consolidated…

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: [2008] NSWSC 743
Decision Date: 18 July 2008

CaseChat Overview and Summary

Frasers Lorne Pty Ltd, the plaintiff, sought to modify an easement over its property to facilitate a residential development on its land. The defendant, Burke, owned the dominant land that benefitted from the easement. The dispute came before the court on an application by the plaintiff for a modification of the easement under section 89 of the Conveyancing Act 1919 (NSW). The court had to decide whether the easement, as currently constituted, impeded the reasonable user of the servient land and whether it secured a practical benefit to the dominant land. Furthermore, the court had to determine whether the proposed modification of the easement would not substantially injure the dominant owners, taking into account discretionary considerations such as the timing of the application and the plaintiff's conduct in relation to the dominant owners.

The court examined the nature and purpose of the easement, which was created to provide access to the dominant land. It found that the easement, as it stood, did not impede the reasonable use of the servient land nor did it secure a practical benefit to the dominant land. The court concluded that the proposed modification of the easement would not substantially injure the dominant owners, as the modification was necessary to allow the plaintiff to comply with a Development Approval issued by the local council. The court also noted the discretionary considerations, including the plaintiff's conduct in seeking consent from the dominant owners long after construction commenced and despite warnings from the council, which suggested a lack of good faith. However, the court found that these considerations did not outweigh the benefits of the modification to the servient land.

The court granted the plaintiff's application for the modification of the easement, allowing the plaintiff to proceed with its residential development. The court emphasised the importance of the timing of the application and the plaintiff's conduct in relation to the dominant owners, but ultimately found that the benefits of the modification to the servient land outweighed these considerations. The court ordered that the easement be modified as proposed by the plaintiff, subject to any conditions imposed by the local council in relation to the Development Approval.

Orders