ING Bank (Australia) Ltd v O'Shea

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.