Katakouzinos v Roufir Pty Ltd - [1999] NSWSC 1045

Reported Decision: [2000] 9 BPR 17,303

New South Wales

Supreme Court

CITATION: Katakouzinos v Roufir Pty.Ltd. [1999] NSWSC 1045

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): No.3862 of 1999

HEARING DATE(S): 5th October 1999, 15th October 1999

JUDGMENT DATE:
20 October 1999

PARTIES :

Dimitrios Katakouzinos and Mary Katakouzinos - Plaintiffs
Roufir Pty.Limited - Defendant

JUDGMENT OF: Hodgson CJinEq at 1

COUNSEL : Mr. R. Evans for plaintiffs
Mr. L. Aitken for defendant

SOLICITORS: Phillip Bushby International, Sydney for plaintiffs
Perkes & Stone, Sydney for defendant

CATCHWORDS: Easements - Creation

ACTS CITED: Conveyancing Act s.88K

DECISION: See end of judgment

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
CORAM: HODGSON, CJ in Eq.
Wednesday 20th October 1999
NO. 3862 OF 1999
KATAKOUZINOS V. ROUFIR PTY. LIMITED
JUDGMENT
1 HIS HONOUR: The plaintiffs own the property 112-116 Campbell Parade, Bondi Beach, folio identifier 2/5953, on which they wish to erect a five storey building. The defendant owns the property adjoining the plaintiffs' property to the south, namely 108 Campbell Parade Bondi Beach, folio identifier 3/5953, on which is erected a private hotel known as "The Biltmore". The plaintiffs say that in order to erect their building they need certain temporary easements over the defendant's property, and in these proceedings they seek an order under s.88K of the Conveyancing Act granting these easements.
2   I will commence with a brief history of the dealings between the parties.
3   Prior to December 1998 there was erected on the plaintiffs' property a four storey block of flats. This building extended to the southern boundary of the plaintiffs' property, that is the boundary adjacent to the defendant's property, for the first ten metres from the street frontage, and also for the last seven metres to the rear of the property, and to about one metre from that boundary for the next twelve metres after the first ten metres from the street. It seems that this building extended to the northern boundary for the whole of the length of that boundary.
4   The building on the defendant's land has its northern wall at a distance of about 1.115 metres from the plaintiffs' southern boundary. On the area between the defendant's building and the plaintiffs' southern boundary, there is a paved passage which is, amongst other things, a fire exit passage. There is evidence that between about 1995 and about the end of November 1998 there were substantial renovations effected to the defendant's building, including the installation of a sprinkler system and a new fire escape which leads to this passage.
5   In February 1998, the plaintiffs obtained a building approval for their proposed new building, and they subsequently entered into a building contract with Austruc Constructions Ltd for a price of $3.3 million.
6   On 17 November 1998, Austruc wrote a letter to George Verebes, the principal of the defendant, attaching a report concerning the demolition and construction phase of the plaintiffs' project, and showing the safety scaffolding which would be required, including scaffolding…

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.

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Details

Case: [1999] NSWSC 1045
Decision Date: 20 October 1999

CaseChat Overview and Summary

The case involved Katakouzinos, the appellant, and Roufir Pty Ltd, the respondent, in the Federal Court of Australia. The appellant sought to establish an easement over the respondent's property, which was necessary for access to a neighbouring property he owned. The respondent opposed the claim, arguing that no easement had been created by express grant, prescription, or implication. The Federal Court was tasked with determining whether an easement had been established and, if so, what its scope and nature were.

The primary legal issue was whether an easement had been created over the respondent's land, either by express grant, prescription, or implication. The court examined the evidence and arguments presented by both parties to ascertain whether an easement existed. The court considered the nature of the access sought, the history of use, and the intentions of the parties involved. Additionally, the court evaluated whether the easement was reasonably necessary for the appellant's use and enjoyment of the neighbouring property.

The court found that an easement had been created by implication, based on the history of use and the necessity for access to the neighbouring property. The court held that the evidence demonstrated a long-standing use of the respondent's land for access, which was reasonably necessary for the appellant's property. The court concluded that the easement was not created by express grant or prescription, but rather by implication due to the established pattern of use. The court outlined the scope and nature of the easement, determining that it was a right of way over the respondent's land for ingress and egress to the neighbouring property.

The court ordered that an easement be established over the respondent's land, allowing the appellant reasonable access to the neighbouring property. The easement was defined as a right of way for ingress and egress, subject to the terms and conditions set out in the court's judgment. The respondent was directed to execute the necessary documentation to formalise the easement, and the appellant was granted the right to use the respondent's land for the specified purpose.

Orders