Kladis v Lowe - [2016] NSWSC 1834

Supreme Court

New South Wales

Medium Neutral Citation: Kladis v Lowe [2016] NSWSC 1834
Hearing dates: 14 November 2016
Date of orders: 16 December 2016
Decision date: 16 December 2016
Jurisdiction: Common Law
Before: Beech-Jones J
Decision:
(1)   On or before 20 January 2017 the plaintiff file and serve the proposed orders he contends are necessary to give effect to this judgment;
(2)   On or before 3 February 2017 the defendants file and serve any proposed orders they contend are necessary to give effect to this judgment;
(3)   The proceedings be listed on 10 February 2017 at 9.30am; and
(4)   There be liberty to apply on three days notice.

Catchwords: EASEMENTS – plaintiff seeks order compelling defendants to approve development application to construct driveway – plaintiff’s property has no vehicle access – plaintiff’s property includes strip of land to street – plaintiff’s property has right of carriageway over abutting strip owned by first defendant – land steep – proposed to construct elevated driveway – whether right of carriageway for vehicles capable of enjoyment – whether plaintiff can require second defendant to agree to permanent ingress to small portion of its land – whether plaintiff’s proposed use unreasonably interferes with defendants’ rights – whether conditional relief can be granted – plaintiff succeeds at least against first defendant – plaintiff to formulate proposed orders
Legislation Cited: Conveyancing Act 1919 (NSW)
Environmental and Planning Assessment Regulations 2000 (NSW)
Evidence Act 1995 (NSW)
Cases Cited: 117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 (1998) 43 NSWLR 504
Butler v Muddle (1995) BPR 97,532
Gallagher v Rainbow (1993) 179 CLR 624
Hemmes Hermitage Pty Ltd v Abdurahman (1991) 22 NSWLR 343
Jelbert v Davis [1968] 1 WLR 589
Kirkjian v Towers (Supreme Court (NSW), 6 July 1987, unreported)
Saggers v Brown (1981) 2 BPR 9329
Sertari Pty Ltd v Nirimba Developments Pty Ltd [2007] NSWCA 324
Shelmerdine v Ringen Pty Ltd [1993] 1 VR 315
Zenere v Leate (1980) BPR 97,029
Category: Principal judgment
Parties: Andrew Kladis (Plaintiff)
Karen Lowe (First Defendant)
Owners Corporation in Strata Plan 30459 (Second Defendant)
Representation:
Counsel:
DE Grieve QC; Dr J Smith (Plaintiff)
TGR Parker SC (Defendants)
Solicitors:
Hones Lawyers (Plaintiff)
Mills Oakley Lawyers (Defendants)

File Number(s): 2014/172551

Judgment

HIS HONOUR: The plaintiff, Andrew Kladis, is the proprietor of a property known as 26 Musgrave Street, Mosman ("No 26"). The first defendant, Karen Lowe, is the proprietor of the property known as No 28 Musgrave Street (“No 28”). The second defendant, the Owners Corporation in Strata Plan 30459, is the proprietor of the common property of a strata plan for 30 Musgrave Street (“No 30”).
The plaintiff seeks an order that the first and second defendants execute an approval of a development application (“DA”) that the plaintiff wishes to lodge to construct a driveway over a portion of its land that leads to Musgrave Street, an adjacent strip of land that forms part of No 28 and a small portion of land that forms…

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 Kladis v Lowe

Details

AGLC: Kladis v Lowe [2016] NSWSC 1834
Case: [2016] NSWSC 1834
Decision Date: 16 December 2016

CaseChat Overview and Summary

The plaintiffs in the matter of Kladis v Lowe sought an order compelling the first defendant, who was the owner of an abutting strip of land, and the second defendant, who owned a steep parcel of land, to approve an application to construct an elevated driveway over the first defendant’s land. The plaintiffs’ land had no vehicle access and was situated at the end of a cul-de-sac. They had a right of carriageway over the first defendant’s land, but this could only be enjoyed on foot. The plaintiffs sought to construct a driveway to gain vehicle access to their property. The defendants objected to the application, arguing that the proposed use of their land would unreasonably interfere with their rights and that the plaintiffs could not require the second defendant to agree to permanent ingress to a small portion of their land. The court was required to determine whether the plaintiffs’ right of carriageway for vehicles was capable of enjoyment, whether the plaintiffs could require the second defendant to agree to permanent ingress, and whether the plaintiffs’ proposed use unreasonably interfered with the defendants’ rights. The court found that the plaintiffs’ right of carriageway for vehicles was capable of enjoyment, and that the plaintiffs could require the first defendant to agree to permanent ingress. The court also found that the proposed use of the second defendant’s land would not unreasonably interfere with their rights, and that conditional relief could be granted. The plaintiffs were successful at least against the first defendant, and the court ordered that the plaintiffs formulate proposed orders.

Orders