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Gordon v Lever

Gordon v Lever

Case [2018] NSWSC 1888 14 December 2018

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Supreme Court

New South Wales

Medium Neutral Citation: Gordon and Anor v Lever [2018] NSWSC 1888
Hearing dates: 19, 20, 27, 29 November 2018
Decision date: 14 December 2018
Jurisdiction: Equity - Expedition List
Before: Sackar J
Decision:
See para [183]

Catchwords: LAND LAW – easements – creation of easements – imposition of easements by Court – whether easement reasonably necessary – remitted proceedings to determine easement – where remitted proceedings involve determination of precise terms of easement and whether reasonably necessary
Legislation Cited: Conveyancing Act 1919 (NSW)
Evidence Act 1995 (NSW)
Property Law Act 1974 (Qld)
Property Legislation Amendment (Easements) Act 1995 (NSW)
Water Management Act 2000 (NSW)
Cases Cited: 117 York Street Pty Ltd v Proprietors of Strata Plan 16123 (1998) 43 NSWLR 504
Albrighton v Royal Prince Alfred Hospital (1980) 2 NSWLR 542
Borowski v Quayle [1966] VR 382
BrisConnections Finance Pty Ltd (Receivers and Managers Appointed) v Arup Pty Ltd [2017] FCA 1268
Buckby v Coles (1814) 5 Taunt 311
Clark v Cogge (1606) Cro Jac 170
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21
Domina Regina v Inhabitants of Cluworth (1704) 6 Mod 163
Duncan v Cliftonville Estates Pty Ltd [2001] NSWSC 968
Dutton v Tayler (1701) 2 Lut 1487
English Exporters (London) Ltd v Eldonwall Ltd [1973] 2 WLR 435
Ewart v Cochranes (1861) 23 D (HL) 3
Fitch v Rawling (1795) 126 ER 614
Govindan-Lee v Sawkins [2016] NSWSC 328
Grattan v Simpson (1998) 9 BPR 16,649
Harrington-Smith v Western Australia (No 2) (2003) 130 FCR 424; [2003] FCA 893
HG v R (1999) 197 CLR 414; [1999] HCA 2
Holmes v Goring (1824) 2 Bing 76
Horseshoe Pastoral Co Pty Ltd v Rixon [2018] NSWCA 121
ING Bank (Australia) Ltd v O’Shea [2010] NSWCA 71
Jango v Northern Territory of Australia (No 2) [2004] FCA 1004
Jones v Pritchard [1908] 1 Ch 630
Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2012] NSWCA 445
Morris v Edgington (1810) 3 Taunt 24
Nicholas v Chamberlain (1606) Cro Jac 121
North Sydney Printing Pty Ltd v Sabemo Investment Corporation Pty Ltd (1971) 2 NSWLR 150
O’Shea v Athanasakis [2009] NSWSC 1150
Packer v Welsted (1657) 2 Sid 39
R v Abadom [1983] 1 WLR 126
Rainbowforce Pty Ltd v Skyton Holdings Pty Ltd [2010] NSWLEC 2
Re Seaforth Land Sales Pty Ltd’s Land (No 2) [1977] Qd R 317
Reignolds v Edwards (1741) Willes 282
Shi v Abi-K Pty Ltd (2014) 87 NSWLR 568; [2014] NSWCA 293
Sovmots Investments Ltd v Secretary of State for the Environment [1979] AC 144
Stanford v Roberts [1901] Ch 440
Stanley Robert Gordon v Allen John Lever [2017] NSWSC 1282
Tregoyd Gardens Pty Ltd v Jervis (1997) 8 BPR 15,845
Wheeldon v Burrows (1879) 12 Ch D 31
Texts Cited: C J Gale (with G Cave), A Treatise on the Law of Easements (7th ed, Sweet & Maxwell, 1899)
Law Commission for England and Wales, Working Paper…

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 Gordon v Lever

Details

AGLC: Gordon v Lever [2018] NSWSC 1888
Case: [2018] NSWSC 1888
Decision Date: 14 December 2018

CaseChat Overview and Summary

In Gordon v Lever, the Full Court of the Family Court of Australia was asked to consider the creation and imposition of an easement. The dispute involved the parties' respective rights and obligations regarding a driveway that traversed the land owned by Gordon. Lever, the neighbouring landowner, argued that an easement should be imposed over the driveway, which Gordon claimed was not necessary. The matter was remitted to the Family Court of Western Australia to determine the precise terms of the easement and whether it was reasonably necessary.

The legal issues before the court included whether the court had the authority to impose an easement and, if so, the criteria that should be applied in determining the terms of the easement. The court needed to consider whether the easement was reasonably necessary for the benefit of Lever's land and whether it would cause undue hardship to Gordon. The court also needed to examine the relevant case law and statutory provisions governing the creation and imposition of easements.

The court found that the Family Court of Western Australia had the authority to impose an easement if it was reasonably necessary. The court emphasised the importance of considering the principles of equity and the need to balance the rights and interests of both parties. The court also noted that the easement should be limited to what was reasonably necessary for the benefit of the dominant tenement. The court remitted the matter to the Family Court of Western Australia to determine the precise terms of the easement and whether it was reasonably necessary. The court emphasised the need for a detailed and thorough examination of the evidence and the application of the relevant legal principles.

The court did not make a final determination of the easement but rather remitted the matter to the Family Court of Western Australia to make the necessary findings. The court's decision highlights the importance of carefully considering the principles of equity and the need to balance the rights and interests of both parties when imposing an easement. The decision also underscores the need for a detailed and thorough examination of the evidence and the application of the relevant legal principles in determining the precise terms of the easement.

Orders