Gittany v McDowell - [2009] NSWSC 591

CITATION: Gittany v McDowell [2009] NSWSC 591
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 06/05/09, 07/05/09, 19/06/09

JUDGMENT DATE :
30 June 2009

JUDGMENT OF: Forster J at 1

DECISION: See paragraph 89.

CATCHWORDS:
Easements to drain water - Agreement to grant - Whether agreement breached - Whether agreement at an end by mutual abandonment.
Easements to drain water - Conveyancing Act (NSW) section 88K - Whether requirements of subsections (1) and (2)(c) have been met.

LEGISLATION CITED: Conveyancing Act (1919)
Real Property Act (1900)

CATEGORY: Principal judgment

CASES CITED: D.T.R Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423
Durack v De Winton (1998) 9 BPR 16,403
Grattan v Simpson (1998) 9 BPR 16,649
Hanny v Lewis (1999) NSWConvR 55,879
Katakouzinos v Roufir (1998) 9 BPR 17,303
Khattar v Wiese (2005) 12 BPR 23,235
Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623
Summers v The Commonwealth (1918) 25 CLR 144

PARTIES: Plaintiff: Robert Paul Gittany
First Defendant: Siobhan Mary McDowell
Second Defendant: Gregory John Burke

FILE NUMBER(S): SC 4584/06

COUNSEL: Plaintiff: W. La Hood (Solicitor)
First Defendant: P.Lane
Second Defendant: G.M.McGrath

SOLICITORS: Plaintiff: W. La Hood
First Defendant: R.Hood
Second Defendant: F.J.Smith

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

FORSTER J

TUESDAY, 30 JUNE 2009

4584/06 ROBERT PAUL GITTANY v SIOBHAN MARY McDOWELL & ANOR

JUDGMENT

1 HIS HONOUR: By his further Amended Statement of Claim filed on 10 October 2007, the plaintiff (“Mr Gittany”) seeks declarations and orders for the specific performance of an agreement made on 12 July 2004 (“the 2004 Agreement”) for the provision by the first defendant (“Ms McDowell”) and the second defendant (“Mr Burke”) of easements to drain water over their respective properties and for consequential orders. In the alternative, Mr Gittany seeks an order pursuant to section 88K of the Conveyancing Act, imposing an easement over the respective properties of Ms McDowell and Mr Burke. Mr Gittany also seeks orders for damages, interest and costs.

2 Ms McDowell and Mr Burke oppose Mr Gittany’s application.

The factual background

3 The basal background facts are substantially uncontested. I find them to be as set out hereunder.

4 As appears from Exhibit 1-D1 (a copy of which is reproduced in this judgment for ease of reference), Piper and Peel Streets Bathurst intersect at right angles to each other. Although the Exhibit shows that Piper Street runs north-west to south-east, for convenience I shall refer to Piper Street as running north-south and to Peel Street as running east-west, and to the various lots shown thereon correspondingly.

5 By reference to that Exhibit, Mr Gittany owns Lot 1 in DP 1015500 (“the Gittany Lot”). The street address of Gittany Lot is 290A Piper Street. I should note for the sake of completeness that Mr Gittany also owns the lot immediately to the north of the Gittany Lot, whose…

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 Gittany v McDowell

Details

AGLC: Gittany v McDowell [2009] NSWSC 591
Case: [2009] NSWSC 591
Decision Date: 30 June 2009

CaseChat Overview and Summary

The case of Gittany v McDowell was heard in the Supreme Court of New South Wales. The plaintiff, Gittany, alleged that the defendant, McDowell, had breached an agreement to grant an easement over his property for the purpose of draining water from Gittany's property. Gittany further contended that the agreement had not ended through mutual abandonment. McDowell denied that the agreement had been breached and argued that it had terminated by mutual abandonment.

The court was required to determine whether an agreement to grant an easement had been breached and whether the agreement had been terminated by mutual abandonment. The court also had to consider whether the requirements of section 88K(1) and (2)(c) of the Conveyancing Act (NSW) had been met in relation to the easement.

The court found that there had been an agreement to grant an easement for the purpose of draining water from Gittany's property. The court held that the agreement had not been breached and that it had not been terminated by mutual abandonment. The court held that the requirements of section 88K(1) and (2)(c) of the Conveyancing Act (NSW) had been met in relation to the easement. The court found in favour of the plaintiff, Gittany.

The court ordered that the defendant, McDowell, grant the easement to the plaintiff, Gittany, for the purpose of draining water from her property. The court further ordered that the defendant pay costs of the proceeding.

Orders