New South Wales
Court of Appeal
CITATION: ING Bank (Australia) Ltd v O'Shea [2010] NSWCA 71 HEARING DATE(S): 18 February 2010
JUDGMENT DATE:
13 April 2010JUDGMENT OF: Giles JA at [1]; Campbell JA at [58]; Young JA at [59] DECISION: The appeal is dismissed with costs. CATCHWORDS: REAL PROPERTY- easements- equity- relief against forfeiture- grantor with contractual right to have easement released if dominant tenement owner breached conditions- whether relief against forfeiture should be granted- whether requirement of unconscionable conduct on respondents' part- breaches caused substantial inconvenience and loss of amenity to the servient tenement- no error in trial judge refusing relief. REAL PROPERTY- easements- court imposed easement- whether regard had to the rights of the servient tenement owner in determining whether "reasonably necessary"- whether regard to effect on servient tenement proper in assessment of "reasonably necessary"- Conveyancing Act 1919, s 88K. LEGISLATION CITED: Conveyancing Act 1919, ss 88B, 88K
Evidence Act 1995, s 55
Queensland Property Law Act 1974-5CATEGORY: Principal judgment CASES CITED: Bofinger v Kingsway Group Ltd [2009] HCA 44; 239 CLR 269
Calahorra Properties Pty Ltd v Nelson [1985] ANZ ConvR 352; Q ConvR 54-202
Commonwealth Development Bank of Australia v Eagle Hotels Pty Ltd [1990] ANZ ConvR 100; NSW ConvR 55-506
D & D Corak Investments Pty Ltd v Yiasemides [2006] NSWSC 1419; 13 BPR 24,103
Hanny v Lewis (1998) 9 BPR 16,205
House v The King [1936] HCA 40; 55 CLR 499
Katakouzinos v Roufir Pty Ltd [1999] NSWSC 1045; 9 BPR 17,303
Khattar v Wiese [2005] NSWSC 1014; 12 BPR 23,235
Leeds International Co-operative Society Ltd v Slack [1924] AC 851
Legione v Hateley (1983) 152 CLR 406
MI Design Pty Ltd v Dunecar Pty Ltd [2000] NSWSC 996; 10 BPR 18,387
Peachey v Somerset (Duke) (1721) 1 Strange 447; 93 ER 626
Re Seaforth Land Sales Pty Ltd's Land [1976] Qd R 190
Re Seaforth Land Sales Pty Ltd's Land (No 2) [1977] Qd R 317
Shiloh Spinners Ltd v Harding [1973] AC 691
Stern v McArthur [1988] HCA 51; 165 CLR 489
Tanwar Enterprises Pty Ltd v Cauchi [2003] HCA 57; 217 CLR 315
Tenth Vandy Pty Ltd v Natwest Markets Australia Pty Ltd [2010] VSC 2
Tillman v AG (NSW) [2007] NSWCA 327; 70 NSWLR 448
Tregoyd Gardens Pty Ltd v Jervis (1997) 8 BPR 15,845
Woodland v Manly Municipal Council [2003] NSWSC 392; 127 LGERA 120
117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 (1998) 43 NSWLR 504PARTIES: ING Bank (Australia) Limited (Appellant)
John Emmet O'Shea and Elizabeth O'Shea (Respondents)FILE NUMBER(S): CA 2009/00298564 COUNSEL: D P Robinson SC and P M Lane (Appellant)
F Kunc SC, I Pike and E Bishop (Respondents)SOLICITORS: Gadens Lawyers (Appellant)
J P O'Neill (Respondents)LOWER COURT JURISDICTION: Supreme Court - Equity Division LOWER COURT FILE NUMBER(S): SC 2577/09 LOWER COURT JUDICIAL OFFICER: Forster J LOWER COURT DATE OF DECISION: 17…
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Details
- Case
- [2010] NSWCA 71
- Decision Date
CaseChat Overview and Summary
ING Bank (Australia) Ltd appealed to the New South Wales Court of Appeal against a decision of the Supreme Court of New South Wales concerning an easement. The dispute arose from a contractual right held by the grantor of an easement to have it released if the dominant tenement owner breached certain conditions. The grantor sought to exercise this right, but the dominant tenement owner sought relief against forfeiture.
The Court of Appeal was required to determine two primary legal issues. First, whether the trial judge erred in refusing to grant relief against forfeiture to the dominant tenement owner, particularly in light of whether the grantor's conduct was unconscionable. Second, the Court considered whether the trial judge had properly had regard to the rights of the servient tenement owner when assessing whether a court-imposed easement under section 88K of the Conveyancing Act 1919 was "reasonably necessary" and whether the effect on the servient tenement was a proper consideration in that assessment.
The Court of Appeal found no error in the trial judge's refusal to grant relief against forfeiture. It was held that the breaches by the dominant tenement owner had caused substantial inconvenience and loss of amenity to the servient tenement, and there was no basis to conclude that the grantor's conduct was unconscionable. Furthermore, the Court affirmed that the trial judge had correctly considered the rights of the servient tenement owner and the impact on that owner when determining the necessity of the easement under section 88K of the Conveyancing Act 1919.
The appeal was dismissed with costs.
The Court of Appeal was required to determine two primary legal issues. First, whether the trial judge erred in refusing to grant relief against forfeiture to the dominant tenement owner, particularly in light of whether the grantor's conduct was unconscionable. Second, the Court considered whether the trial judge had properly had regard to the rights of the servient tenement owner when assessing whether a court-imposed easement under section 88K of the Conveyancing Act 1919 was "reasonably necessary" and whether the effect on the servient tenement was a proper consideration in that assessment.
The Court of Appeal found no error in the trial judge's refusal to grant relief against forfeiture. It was held that the breaches by the dominant tenement owner had caused substantial inconvenience and loss of amenity to the servient tenement, and there was no basis to conclude that the grantor's conduct was unconscionable. Furthermore, the Court affirmed that the trial judge had correctly considered the rights of the servient tenement owner and the impact on that owner when determining the necessity of the easement under section 88K of the Conveyancing Act 1919.
The appeal was dismissed with costs.
Orders
Orders of the court
The appeal is dismissed with costs.
Background
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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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