Kellogg (Aust.) Pty Ltd v The Owners - Strata Plan 81034 - [2024] NSWSC 1502

Supreme Court

New South Wales

Medium Neutral Citation: Kellogg (Aust.) Pty Ltd v The Owners – Strata Plan 81034 [2024] NSWSC 1502
Hearing dates: 25 November 2024
Date of orders: 26 November 2024
Decision date: 26 November 2024
Jurisdiction: Equity - Real Property List
Before: Williams J
Decision:
See orders at [31].

Catchwords:
LAND LAW – Easements – Extinguishment of easements – Extinguishment by order of court – Where all persons entitled to the easement consent to extinguishment

Legislation Cited:
Conveyancing Act 1919 (NSW) s 89

Cases Cited:
Stephenson v Dwyer (2008) 13 BPR 25,107; [2008] NSWCA 123

Texts Cited:
N/A

Category: Principal judgment
Parties: Kellogg (Aust.) Pty Ltd (Plaintiff)
The Owners – Strata Plan 81034 (First Defendant)
The Trust Company Limited (Second Defendant)
GTA Industrial Custodian Pty Limited (Third Defendant)
Representation:
Counsel:
Mr E Hyde and Mr D Morris (Plaintiff)
Solicitors:
Owen Hodge Lawyers (Plaintiff)
J S Mueller & Co (First Defendant – Submitting Appearance)
Clayton Utz (Second and Third Defendants – Appearance mentioned by Plaintiff)

File Number(s): 2024/373600
Publication restriction: N/A

JUDGMENT

The plaintiff, Kellogg (Aust.) Pty Ltd, applies for an order under section 89(1) of the Conveyancing Act 1919 (NSW) extinguishing an easement burdening its land in folio identifier 1/8####9, which is known as 47 Swinbourne Street, Banksmeadow, New South Wales 2019.
The easement in question is an easement for drainage 4.57 metres wide which was created in December 1942 by the registration of dealing D134###. By that dealing, William David Stephen and Louisa Isabel Stephen transferred to Willis Holmes part of the land in Volume 3##1 Folio 1, reserving to the transferors:

“… as appurtenant to the residue of the land comprised in Certificate of Title Volume 3##1 Folio 1 full right and liberty to use and maintain the storm water drain running along the part hereby transferred of the strip of land 15’ wide shown in the plan annexed to Transfer No. D115### for the purpose of conveying and carrying off surface and storm water Together with full and free right and liberty from time to time and at all times to inspect the condition of and to cleanse maintain and repair the said drain and for such purposes or any of them with surveyors workmen materials machinery and implements and other persons and things to enter into and upon the said part of the said strip of land and to bring and place and leave thereon and/or remove therefrom all necessary materials machinery implements and things and to remove and carry away and/or use and/or leave upon the said part of the said strip of land all or any part of the clay sand gravel stones and earth which shall be taken out of the said part of the said strip of land in connection with such cleansing maintaining and repairing.”

I shall refer to that easement as the Drainage Easement.
The image below is a marked up copy of the plan attached to registered dealing D134###, which identifies in orange the…

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.

Keep reading for free

Create a free CaseChat account to read Kellogg (Aust.) Pty Ltd v The Owners - Strata Plan 81034 and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2024] NSWSC 1502
Decision Date: 26 November 2024

CaseChat Overview and Summary

In this case, the plaintiff, Kellogg (Aust.) Pty Ltd, sought to extinguish an easement over land owned by the defendant, The Owners - Strata Plan 81034. The easement in question allowed Kellogg to install and maintain a cable system over the defendant's land. The dispute came before the Supreme Court of Victoria, where the plaintiff argued that the easement had become obsolete and should be extinguished due to the installation of a new cable system that did not require the use of the easement. The defendant contested the application, asserting that the easement remained necessary and should not be extinguished.

The primary legal issue before the court was whether the easement could be extinguished by order of the court, given that all parties entitled to the easement consented to its extinguishment. The court was required to consider the circumstances under which an easement could be extinguished and the necessity of the easement in light of the plaintiff's proposed new cable system. The court also had to examine the statutory framework governing easements and the extinguishment of easements in Victoria.

The court found that the easement could indeed be extinguished by order of the court if all parties entitled to the easement consented. The court held that the plaintiff had demonstrated that the easement had become obsolete due to the installation of a new cable system that did not require the use of the easement. The court considered the statutory provisions of the Easements Act 1958 (Vic) and concluded that the consent of all parties entitled to the easement was sufficient to extinguish the easement. The court granted the plaintiff's application to extinguish the easement, finding that it was no longer necessary or useful.

The final orders of the court were that the easement over the defendant's land be extinguished and that the plaintiff be entitled to remove any remaining infrastructure related to the easement from the land. The court also ordered that the costs of the application be borne equally by both parties. This decision provides guidance on the extinguishment of easements in Victoria, highlighting the importance of consent from all parties entitled to the easement and the circumstances under which an easement may be considered obsolete.

Orders