Gordon v Lever

Case [2018] NSWCA 43

Court of Appeal


Supreme Court


New South Wales

  • Summary available
  • Amendment notes
Medium Neutral Citation: Gordon v Lever [2018] NSWCA 43
Hearing dates: 14 February 2018
Decision date: 16 March 2018
Before: McColl JA at [1];
White JA at [2];
Sackville AJA at [3]
Decision:

1.   Grant the Applicants leave to appeal.
2.   Direct the Applicants to file the amended notice of appeal within seven days.
3.   Allow the appeal.
4.   Set aside Orders 1, 2 and 4 made by the primary Judge on 24 November 2017.
5.   Remit the proceedings to the primary Judge for determination consistent with these reasons for judgment.
6.   Grant the Respondent an extension of time until 8 December 2017 to file a cross-summons seeking leave to cross-appeal.
7.   Direct the Respondent to file the notice of cross-appeal within seven days.
8.   Allow the cross-appeal.
9.   Set aside Order 3 made by the primary Judge on 24 November 2017.
10.   Note that Order 5 includes the question of the costs of the proceedings.
11.   The Respondent pay 80 per cent of the Applicants’ costs of the appeal, including the Applicants’ costs of the application for leave to appeal.
12.   The Applicants pay the Respondent’s costs of the cross-appeal, including the costs of the application for leave to cross-appeal but excluding the costs of the application for an extension of time in which to file the summons seeking leave to cross-appeal.

Catchwords:

LAND LAW — Easements — Creation of easements — Creation by order of court — Court to have regard to impact of proposed easement upon servient tenement

  DECLARATIONS — Finality requirement — Whether primary Judge in position to make a declaration finally resolving issue
Legislation Cited: Conveyancing Act 1919 (NSW), ss 88, 88B, 88K, 195C
Real Property Act 1900 (NSW)
Supreme Court Act 1970 (NSW), s 101
Cases Cited: 117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 (1998) 43 NSWLR 504
Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317; [2003] HCA 51
Gordon v Lever [2017] NSWSC 1282
Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; [2002] HCA 54
ING Bank Australia Ltd v O’Shea [2010] NSWCA 71; 14 BPR 27, 317
International General Electric Co of New York Ltd v Customs and Excise Commissioners [1962] Ch 784
Kinsella v Gold Coast City Council [2015] 1 Qd R 274; [2014] QSC 65
Maurice Toltz Pty Ltd v Macy’s Emporium Pty Ltd (1969) 91 WN (NSW) 591
Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2012] NSWCA 445; 16 BPR 31,257
Perpetual Trustees Australia Ltd v Heperu Pty Ltd (No 2) (2009) 78 NSWLR 190; [2009] NSWCA 387
Taluja v Shree Shirdi Sai Sansthan Sydney Ltd [2016] NSWCA 158; 18 BPR 36,079
Westfield Management Ltd v Perpetual Trustee Co Ltd (2007) 233 CLR 528; [2007] HCA 45
Texts Cited: Meagher, Gummow and Lehane’s Equity Doctrines and Remedies, 5th ed 2014
Category:Principal judgment
Parties: Stanley Robert Gordon…

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AGLC
Gordon v Lever [2018] NSWCA 43
Case
[2018] NSWCA 43
Decision Date

CaseChat Overview and Summary

In the matter of *Gordon v Lever*, the applicants sought to appeal a decision of the primary Judge concerning the creation of an easement. The dispute centred on the primary Judge's orders relating to the establishment of a right of way over the respondent's land.

The Court of Appeal was required to determine whether the primary Judge had erred in making orders that purported to finally resolve the issue of the easement's creation and its impact on the servient tenement. Specifically, the court considered the requirements for the creation of an easement by court order and whether the primary Judge had adequately had regard to the impact of the proposed easement on the servient tenement as mandated by legislation.

The Court of Appeal found that the primary Judge had not been in a position to make a final declaration regarding the easement. The court reasoned that the statutory framework governing the creation of easements by court order requires a careful consideration of the impact on the servient tenement, which had not been sufficiently undertaken. Consequently, the appeal was allowed, and the primary Judge's orders were set aside and remitted for determination. The cross-appeal was also allowed, leading to further orders setting aside a specific order of the primary Judge. The costs of the appeal and cross-appeal were apportioned between the parties.

Orders

Orders of the court

1. Grant the Applicants leave to appeal.

2. Direct the Applicants to file the amended notice of appeal within seven days.

3. Allow the appeal.

4. Set aside Orders 1, 2 and 4 made by the primary Judge on 24 November 2017.

5. Remit the proceedings to the primary Judge for determination consistent with these reasons for judgment.

6. Grant the Respondent an extension of time until 8 December 2017 to file a cross-summons seeking leave to cross-appeal.

7. Direct the Respondent to file the notice of cross-appeal within seven days.

8. Allow the cross-appeal.

9. Set aside Order 3 made by the primary Judge on 24 November 2017.

10. Note that Order 5 includes the question of the costs of the proceedings.

11. The Respondent pay 80 per cent of the Applicants’ costs of the appeal, including the Applicants’ costs of the application for leave to appeal.

12. The Applicants pay the Respondent’s costs of the cross-appeal, including the costs of the application for leave to cross-appeal but excluding the costs of the application for an extension of time in which to file the summons seeking leave to cross-appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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