Gordon v Lever (No 2)

Case [2019] NSWCA 275

Court of Appeal


Supreme Court


New South Wales

  • Summary available
Medium Neutral Citation: Gordon v Lever (No 2) [2019] NSWCA 275
Hearing dates: 5 August 2019
Date of orders: 13 November 2019
Decision date: 13 November 2019
Before: Bell P at [1]; Payne JA at [103]; Emmett AJA at [104]
Decision:

1.    Appeal allowed in part.

2.    Vary order 1 made on 18 December 2018 by replacing “Annexure B to those orders” with “Annexure 1 to the reasons of the Court of Appeal delivered on 13 November 2019”.

3.    Order that the respondents pay the appellants’ costs of the appeal. 

Catchwords: REAL PROPERTY – Conveyancing Act 1919 s 88K – Easements – “Reasonably necessary” – where terms imposed on and limiting re use said to be uncertain in their practical operation – where terms in effect required use of alternative means of access in circumstances that were not readily capable of being assessed – where terms in substance required an alternative access route to be used in particular circumstances but where that alternative route would involve traversing property in breach of Crown Land Management Act 2016
Legislation Cited: Conveyancing Act 1919 (NSW) ss 88K, 89
Crown Land Management Act 2016 (NSW) s 13.3(6)
Crown Lands Act 1884 (NSW) s 8, Sch
New South Wales Government Gazette, No 56, 11 May 1923
Water Management Act 2000 (NSW) Pt 3
Cases Cited: 117 York Street Pty Limited v Proprietors of Strata Plan No 16123 (1998) 43 NSWLR 504; (1998) 98 LGERA 171
Gordon v Lever [2018] NSWCA 43
Govindan-Lee v Sawkins [2016] NSWSC 328
Grattan v Simpson (1998) 9 BPR 16,649
House v R (1936) 55 CLR 499; [1936] HCA 40
King v Carr-Gregg [2002] NSWSC 379
Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2012] NSWCA 445; (2012) 16 BPR 31,257
Owners Strata Plan 13635 v Ryan [2006] NSWSC 221
Re Seaforth Land Sales Pty Ltd’s Land (No 2) [1977] Qd R 317
Shi v Abi-K Pty Ltd (2014) 87 NSWLR 568; [2014] NSWCA 293
Woodland v Manly Municipal Council [2003] NSWSC 392; (2003) 127 LGERA 120; (2004) NSW ConvR 56-071
Texts Cited: Brendan Edgeworth, Butt's Land Law (7th ed, 2017, Thomson Reuters)
Category:Principal judgment
Parties: Stanley Robert Gordon (First Appellant)
Christine Margaret Gordon (Second Appellant)
Allen John Lever (First Respondent)
Debra Ann Lever (Second Respondent)
Representation:

Counsel:
M R Hall SC, L Byrne (Appellants)
G A Sirtes SC, C Simpson (Respondents)

  Solicitors:
John F Gibson (Appellants)
Parker & Kissane Solicitors (Respondents)
File Number(s): 2019/11223
 Decision under appeal 
Court or tribunal:
Supreme Court of New South Wales
Jurisdiction:
Equity – Expedition List
Citation:
[2018] NSWSC 1888 and [2019] NSWSC 571
Date of Decision:
14 December 2018 and 17 May 2019
Before:
Sackar J
File Number(s):
2017/55270

Headnote

[This headnote is not to be read as part of the judgment]

The appellants (the Gordons) and the respondents (the Levers) owned neighbouring properties adjacent to the Richmond River in the Northern…

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AGLC
Gordon v Lever (No 2) [2019] NSWCA 275
Case
[2019] NSWCA 275
Decision Date

CaseChat Overview and Summary

Gordon (appellants) appealed to the Court of Appeal of New South Wales against orders made by the primary judge in relation to an application under section 88K of the Conveyancing Act 1919 (NSW) to impose an easement over land owned by the respondents. The dispute concerned the terms and conditions of a proposed easement for access, which the appellants argued were uncertain in their practical operation and effectively required the use of an alternative access route that would contravene the Crown Land Management Act 2016 (NSW).

The Court of Appeal was required to determine whether the terms imposed on the easement were sufficiently certain to be enforceable and whether they were "reasonably necessary" for the beneficial enjoyment of the dominant tenement, as required by section 88K. Specifically, the court had to consider if the terms, which mandated the use of an alternative access route in certain circumstances, were practically assessable and if that mandated route would lead to a breach of other legislation.

The Court of Appeal found that the terms imposing the easement were uncertain in their practical operation. The court reasoned that the conditions for using the alternative access route were not readily capable of assessment, and that in substance, the terms required the use of an alternative route that would involve traversing Crown land in breach of the Crown Land Management Act 2016. Consequently, the appeal was allowed in part, with the orders of the primary judge being varied to reflect the correct annexure for the easement, and the respondents were ordered to pay the appellants' costs of the appeal.

Orders

Orders of the court

1. Appeal allowed in part.

2. Vary order 1 made on 18 December 2018 by replacing “Annexure B to those orders” with “Annexure 1 to the reasons of the Court of Appeal delivered on 13 November 2019”.

3. Order that the respondents pay the appellants’ costs of the 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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