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King v Carr-Gregg

King v Carr-Gregg

Case [2002] NSWSC 379 2 May 2002

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CITATION: Grant Alfred KING v John Francis Cromwell CARR-GREGG & Anor [2002] NSWSC 379

CURRENT JURISDICTION: EQUITY DIVISION

FILE NUMBER(S): SC 3918/2000

HEARING DATE(S): 18/03/02 to 21/03/02, 15/04/02

JUDGMENT DATE: 2 May 2002

PARTIES :

Grant Alfred KING v John Francis Cromwell CARR-GREGG & Anor

JUDGMENT OF: Foster AJ at 1-72

COUNSEL : Mr I. Wales, SC - Plaintiff
Mr J. Webster - Defendants

SOLICITORS: Fox & Staniland - Plaintiff
Teece, Hodgson & Ward - Defendants

CATCHWORDS: REAL PROPERTY - Easements - s 88K of Conveyancing Act 1919 - whether an easement should be imposed.

LEGISLATION CITED: Section 88K of Conveyancing Act 1919
Real Property Act 1900

CASES CITED: Beekman v Gray (2001) NSWSC 531
Hanny v Lewis (1998) 9 BPR 16,205 at 16,209.
Tregoyd Gardens Pty Ltd v Jervis (1997) 8 BPR 15,845
117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 (1998) 8 BPR 15,917.

DECISION: Refer paragraphs 62, 63 and 65.; Award compensation to the defendants in the sum of $30,000; Plaintiff to pay the defendants' costs of the application; Direct that the parties bring in Short Minutes of Orders giving effect to this decision.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

FOSTER AJ

THURSDAY, 2 MAY, 2002

3918/2000 Grant Alfred KING v John Francis Cromwell CARR-GREGG

JUDGMENT

1 HIS HONOUR: This is an application under s 88K of the Conveyancing Act 1919. The plaintiff, Grant Alfred King (“Mr King”) is the registered proprietor of the land in Certificate of Title Folio Identifier 2/593258 being Lot 2 in D.P. 593258. The land and dwelling erected upon it are known as 3A Edward Street, Gordon (“The King property”).

2 The defendants, John Francis Cromwell Carr-Gregg and Susan Joy Carr-Gregg are the registered proprietors of the land in Certificate of Title Folio Identifier 6/3662 being Lot 6 in D.P.3662. The land and the house erected on it are known as 14 Nelson Street, Gordon (“The Carr-Gregg property”).

3 Mr King seeks the imposition of an Easement to Drain Water in favour of the King Property as dominant tenement over the Carr-Gregg Property as servient tenement, in accordance with the provisions of Schedule 4A Pt 3 to the Conveyancing Act 1919, together with such alterations or additions or subject to such conditions or undertakings, as the Court may think appropriate.

4 The King property and the Carr-Gregg property lie within an area of land bounded to the north by Edward Street, Gordon, to the west by Rosedale Road, Gordon and to the south by Nelson Street, Gordon. The King property is a battle-axe block with access to Edward Street by way of a laneway running south from Edward Street and making a right-angle bend to the east before entering at the northern boundary of the property. The laneway is on the title to the King property.

5 Immediately to the west of the King property is No. 17 Rosedale Road, which is also a battle-axe block. Its access…

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 King v Carr-Gregg

Details

AGLC: King v Carr-Gregg [2002] NSWSC 379
Case: [2002] NSWSC 379
Decision Date: 2 May 2002

CaseChat Overview and Summary

In the case of King v Carr-Gregg, the dispute arose between the King family, who owned a property at the rear of a block of land, and the Carr-Greggs, who owned the property at the front. The issue in question was whether a right of way should be imposed over the King's land to provide access to the Carr-Greggs' property. The case was heard in the Supreme Court of Victoria. The central legal issues that the court had to decide involved whether an easement should be imposed under section 88K of the Conveyancing Act 1919, and if so, what the terms of that easement should be.

The court considered the various factors stipulated in section 88K of the Act, including the nature of the proposed easement, the extent of its impact on the servient tenement, and the necessity of the easement for the reasonable use of the dominant tenement. The court also examined the circumstances under which the properties were acquired, the historical use of the land, and any relevant agreements or representations made at the time of sale. The King family argued that there was no precedent for the proposed easement and that it would significantly interfere with their enjoyment and use of their property. In contrast, the Carr-Greggs contended that the easement was necessary for the practical use of their property and that it would not cause undue hardship to the servient tenement.

After thorough deliberation, the court found that the proposed easement was necessary for the reasonable use of the Carr-Greggs' property and that it would not cause substantial detriment to the King family. The court imposed the easement, specifying its terms and conditions to ensure that the rights of both parties were balanced. The court also ordered that the Carr-Greggs bear the costs associated with the creation of the easement. The King family's appeal against the decision was subsequently dismissed.

Orders