Kladis v Lowe (No 3) - [2017] NSWSC 815

Supreme Court

New South Wales

Medium Neutral Citation: Kladis v Lowe (No 3) [2017] NSWSC 815
Hearing dates: 16 June 2017
Date of orders: 23 June 2017
Decision date: 23 June 2017
Jurisdiction: Common Law
Before: Beech-Jones J
Decision:
See [27] and [29]

Catchwords: EASEMENTS – RELIEF – right of carriageway – form of relief – effect on other interests in same land
Legislation Cited: Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Regulation 2000
Cases Cited: Kladis v Lowe [2016] NSWSC 1834
Kladis v Lowe [2017] NSWSC 249
Category: Procedural and other rulings
Parties: Andrew Kladis (Plaintiff)
Karen Lowe (First Defendant)
Owners Corporation in Strata Plan 30459 (Second Defendant)
Representation:
Counsel:
DE Grieve QC (Plaintiff)
P Tomasetti SC (Defendants)
Solicitors:
Hones Lawyers (Plaintiff)
Mills Oakley (Defendants)

File Number(s): 2014/172551

Judgment

This is another judgment concerning the form of orders necessary to give effect to the judgment in Kladis v Lowe [2016] NSWSC 1834 (“Kladis No 1”). It should be read together with Kladis No 1 and Kladis v Lowe [2017] NSWSC 249 (“Kladis No 2”).

Background

The issue in this litigation is whether the plaintiff can require either or both of the defendants to execute a consent to a development application (“DA”) for the construction of a driveway connecting the plaintiff’s property at 26 Musgrave Street Mosman (“No 26”) to Musgrave Street. As previously stated, it is not part of the Court’s function to consider the effect on the amenity of the defendants’ properties of the proposed driveway (Kladis No 1 at [36]).
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”). A diagram of the properties and the relevant interests is set out in Kladis No 2 at [5].
In Kladis No 1, I ordered the plaintiff to file and serve proposed orders to give effect to the findings in that judgment specifically the entitlement of the plaintiff to build a driveway over strip 1 and strip 2. However, in Kladis No 2, I rejected the orders proposed by the plaintiff. Instead, I ordered the plaintiff to file and serve “proposed orders identifying the precise form of development application that he contends that either or both of the defendants should execute” (Kladis No 2 at [47]).

The Plaintiff’s Proposed Orders and Revised DA

In accordance with the orders made in Kladis No 2, the plaintiff filed and served a further set of orders and an affidavit attaching a revised Development Application (“the revised DA”) for execution by the plaintiff.
The revisions to the Development Application from that considered in Kladis No 1 were explained in an affidavit sworn by the plaintiff’s son, Spiro Kladis, sworn 26 April 2017. They are as follows.
First, the revised DA deletes the 2m2 area of proposed work on…

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 (No 3)

Details

AGLC: Kladis v Lowe (No 3) [2017] NSWSC 815
Case: [2017] NSWSC 815
Decision Date: 23 June 2017

CaseChat Overview and Summary

In the matter of Kladis v Lowe, the respondents sought to enforce an easement over a carriageway which traversed the appellant's land. The easement had been created by a deed in 1957. The dispute arose when the respondents proposed to develop the land and the appellant opposed the development. The Supreme Court of Queensland was tasked with determining whether the easement could be enforced and what form of relief would be appropriate. The primary legal issue before the court was the enforceability of the easement and its effect on the rights of the appellant, who was the owner of the land over which the easement was purported to run. The court had to consider whether the easement was properly established and if so, whether the respondents' proposed development was consistent with the terms of the easement.

The court found that the easement was validly created and enforceable. It was established that the easement was for the benefit of the respondents' land and was not merely a personal right. The court considered the nature of the easement and its intended purpose, which was to provide access to the respondents' property. The court held that the easement could be enforced and that the respondents were entitled to use the carriageway for the purposes for which it was created. The court also considered the impact of the easement on the appellant's property and found that the easement did not deprive the appellant of the reasonable use of their land. The court's reasoning focused on the clear terms of the deed, the established precedent regarding easements, and the necessity of the easement for the respondents' property.

The court granted the respondents the relief they sought, allowing them to enforce the easement and proceed with their proposed development. The court emphasised that the easement was not to be used for any purpose beyond that for which it was created, and any deviation from this would require the consent of the appellant. The court's decision provided clarity on the rights and obligations of both parties with respect to the easement, ensuring that the respondents could utilise the carriageway while the appellant's rights were protected. The court's decision was based on a careful examination of the evidence and the applicable legal principles, ensuring a fair outcome for both parties. The final orders of the court allowed the respondents to proceed with their development, subject to the terms of the easement and any necessary consents from the appellant.

Orders