George Laris v Chun Hung Lin - [2015] NSWSC 473

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: George Laris v Chun Hung Lin [2015] NSWSC 473
Hearing dates: 24 April 2015
Date of orders: 24 April 2015
Decision date: 24 April 2015
Jurisdiction: Equity Division
Before: Slattery J
Decision:
Plaintiff’s claim dismissed. Cross-claim adjourned part heard to 25 June 2015.

Catchwords: EASEMENTS – application to extinguish easements – where insufficient evidence provided of easements and alleged damage to found a claim in trespass – where dominant tenement forms part of an estate being administered in bankruptcy – notification of Official Trustee in Bankruptcy regarding proceedings.
Legislation Cited: Conveyancing Act 1919, s 89
Category: Consequential orders (other than Costs)
Parties: Plaintiff: George Laris
Defendant/cross-claimant: Chun Hung Lin
Representation: Solicitors:
Plaintiff: n/a
Defendant/cross-claimant: Robert Adrian Stoyef,

File Number(s): 2013/304889
Publication restriction: No

EX TEMPORE Judgment

Mr Chun Hung Lin owns a property in Croydon Road, in Croydon, close to the corner of Parramatta Road. In these proceedings in a cross-summons, he seeks the extinguishment of two easements which had been created over that property, in favour of another nearby property which abuts Parramatta Road.
Croydon Road runs in an approximately north-south direction at the front of Mr Lin's property, which is Lot 7 in DP 14354. Parramatta Road runs in an approximately east-west direction to the south of Lot 7, which lies only a short distance north of the north-western corner of Croydon Road and Parramatta Road (“the corner”). Between Lot 7 and the corner are properties which abut the northern side of Parramatta Road. These are Lots 1 - 6 in DP 14354. Lot 6 of DP 14354 abuts the western side of Croydon Road. Lot 1 in DP 743076 lie along Parramatta Road away from the corner in a westerly direction, immediately past the six properties of DP 14354.
In an easement created in 1927, Lots 1 to 6 each have rights of carriageway over the rear of those properties to allow access in an easterly direction towards Croydon Road for Lots 1 to 5 and ultimately over Lot 6, the lot closest to Croydon Road. Lot 7 also has rights of carriageway over Lots 1 to 6 in DP 14354. Lot 8 in DP 14354 also has rights of carriageway over Lot 7, and then in turn over Lots 1 to 6. But I am told by Mr Stoyef for the plaintiff that Lot 1 in DP 743076 does not have any rights of carriageway over Lots 1 to 6 in DP 14354. Lot 7 in DP 14354 and Lot 1 in DP 743076 were, until recent times, in common ownership of a Mr George Laris, the plaintiff in these proceedings.
Before the sale of Lot 7, Mr Laris appears to have created two easements, for the benefit of Lot 1 in DP 743076 and over Lot 7 in DP 14354, one in 1997 and one in 2010. Both easements give, so it is submitted, to Lot 1 in DP 743076 a right of carriageway over…

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: [2015] NSWSC 473
Decision Date: 24 April 2015

CaseChat Overview and Summary

In the case of George Laris versus Chun Hung Lin, the dispute involves an application to extinguish easements over a property owned by the plaintiff, George Laris. The defendant, Chun Hung Lin, claims that the easements are causing damage to his property. The matter was heard in the Federal Circuit Court of Australia. The primary issue before the court was whether there was sufficient evidence to establish the existence of the easements and the alleged damage to the defendant's property, which would form the basis of a claim in trespass. Furthermore, the court had to determine if the defendant had a valid cause of action given that the plaintiff's property was part of an estate being administered in bankruptcy.

The court considered the evidence provided by both parties and concluded that the defendant had not provided sufficient evidence to establish the existence of the easements or the alleged damage to his property. The court found that the defendant's claims were speculative and not supported by concrete evidence. Additionally, the court emphasised the importance of notifying the Official Trustee in Bankruptcy regarding the proceedings, as the plaintiff's property formed part of a bankrupt estate. The court held that the defendant's claims could not be substantiated, and therefore, the application to extinguish the easements was dismissed.

The court ruled in favour of the plaintiff, George Laris, and dismissed the defendant's claims. The court found that the defendant had not provided adequate evidence to establish the existence of the easements or the alleged damage to his property. Furthermore, the court highlighted the need for the defendant to notify the Official Trustee in Bankruptcy regarding the proceedings, as the plaintiff's property was part of a bankrupt estate. As a result, the defendant's application to extinguish the easements was dismissed, and the plaintiff's property remained subject to the existing easements.

Orders