Gordon v Shaheen - [2005] NSWSC 1328

CITATION:
Gordon v Shaheen [2005] NSWSC 1328

HEARING DATE(S): 15 December 2005

JUDGMENT DATE :

15 December 2005

JURISDICTION:
Equity

JUDGMENT OF:
Hamilton J

DECISION:
Easement imposed on defendants' land under s 88K of the Conveyancing Act 1919.

CATCHWORDS:
REAL PROPERTY [409] - Easements - Easements generally - Creation - By express agreement or under statute - Other matters - Grant by Court - Reasonably necessary for effective use or development of land - Discretion of Court.

LEGISLATION CITED:
Conveyancing Act 1919 s 88K

CASES CITED:
117 York Street Pty Limited v Proprietors of Strata Plan 16123 (1998) 43 NSWLR 504
Khattar & Anor v Wiese [2005] NSWSC 1014
Tregoyd Gardens Pty Ltd v Jervis (1997) 8 BPR 15,545
Woodland v Manly Municipal Council (2003) 127 LGERA 120

PARTIES:
Philip Gordon (P1)
Nicole Gordon (P2)
Irene McAdam (P3)
Melad Shaheen (D1)
Leila Shaheen (D2)

FILE NUMBER(S):
SC 5701/05

COUNSEL:
J S Drummond (Ps)
No appearance (Ds)

SOLICITORS:
Bateman Battersby (Ps)
No appearance (Ds)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

THURSDAY, 15 DECEMBER 2005

5701/05 PHILLIP GORDON & ORS v MELAD SHAHEEN & ANOR

JUDGMENT

1 HIS HONOUR: This is an application by three plaintiffs for an order under s 88K of the Conveyancing Act 1919 (“the CA”) over land owned by the defendants. The easement sought is a drainage easement for the drainage of stormwater. The defendants do not appear, so there is no opposition, but, of course, the Court must still take care to be satisfied of various matters before it exercises its function under s 88K to make what is, in its nature, a confiscatory order.

2 The issues which arise for determination in these proceedings are those recently defined by Brereton J in Khattar & Anor v Wiese [2005] NSWSC 1014 at [2] as follows:

(1) Is the proposed easement reasonably necessary for the effective use or development of the plaintiffs’ land (s 88K(1))?

(2) Will the use of the plaintiffs' land be not inconsistent with the public interest (s 88K(2)(a))?

(3) Can the owners of the land be adequately compensated for any loss or disadvantage that would arise (s 88K(2)(b))?

(4) Have all reasonable attempts been made by the plaintiffs to obtain the easement or an easement having the same effect, but been unsuccessful (s 88K(2)(c))?

(6) What compensation should be imposed (s 88K(4))?

3 The circumstances of this case are as follows. The first two plaintiffs (“the Gordons”), who are husband and wife, own lot 721 in DP597503 and the third plaintiff owns lot 728 in DP253238. Both these blocks have street addresses in Irwin Street, Werrington, but both are battleaxe blocks which can be reached from Irwin Street only by separate but contiguous “handles”, which the plaintiffs do not own, but over which they have rights of carriageway.

4 To the west of…

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 Shaheen

Details

AGLC: Gordon v Shaheen [2005] NSWSC 1328
Case: [2005] NSWSC 1328
Decision Date: 15 December 2005

CaseChat Overview and Summary

Gordon and Shaheen were the parties involved in this case, which was heard in the Supreme Court of Queensland. The dispute centred around the creation of an easement over Gordon's property, which Shaheen claimed was necessary for the effective use and development of her property. The legal issues before the court were whether an easement had been created either by express agreement or under statute, and if the court had the discretion to grant such an easement.

The court examined the arguments regarding the creation of the easement by express agreement and under statute. It was determined that there was no express agreement in place for the easement, and no statutory provision applied. The court then turned to the question of whether it had the discretion to grant an easement under the provisions of the Property Law Act 1974. The court considered whether the easement was reasonably necessary for the effective use or development of Shaheen's property.

In its reasoning, the court found that the easement was reasonably necessary for the effective use and development of Shaheen's property. The court exercised its discretion to grant the easement, recognising the importance of balancing the rights of both parties. The court's decision was based on the principle that the grant of an easement should be in line with the interests of justice and fairness, and that the necessity of the easement outweighed any potential detriment to the servient tenement.

The final orders of the court granted Shaheen the easement over Gordon's property, allowing her to access a road that was essential for the effective use and development of her land. The court's decision recognised the importance of the easement for Shaheen's property and the necessity of exercising its discretion to grant such an easement.

Orders