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Laris v Lin (No 2)

Laris v Lin (No 2)

Case [2016] NSWSC 560 9 May 2016

Easements & Covenants

Adverse Possession

Extinguishment of Easements

Property Law

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Laris v Lin (No. 2) [2016] NSWSC 560
Hearing dates: 24 April, 1 & 5 June, 30 July, 18 & 19 August, 9 September, 12 October 2015 and 26 November 2015 (view held).
Date of orders: 09 May 2016
Decision date: 09 May 2016
Jurisdiction: Equity
Before: Slattery J
Decision:
Neither of the rights of carriageway is extinguished or varied. Declaration made that the cross-defendant is not entitled to park vehicles on the rights of carriageway except as an incident of the use of right of carriageway. Costs reserved. Balance of the relief sought in the proceedings reserved for the parties to make further submissions.

Catchwords: EASEMENTS – application to extinguish or vary two rights of carriageway under Conveyancing Act 1919, s 89 – principal proceedings commenced by dominant tenement owner but discontinued due to his bankruptcy – servient tenement owner continues to apply for extinguishment of the two rights of carriageway on his cross claim – construction of the rights of carriageway – whether the rights of carriageway: should be deemed obsolete; or impede the reasonable user of the servient tenement, without securing practical benefit to the dominant tenement – whether the rights of carriageway have been abandoned – whether the extinguishment of the rights of carriageway will not substantially injure the person entitled to them – if rights of carriageway are not extinguished whether the dominant tenement owner is entitled to park vehicles on the right of carriageway.
Legislation Cited: Bankruptcy Act 1966 (Cth), ss 55, 60(2), 60(3)
Conveyancing Act 1919, ss 88B, 89
Real Property Act 1900
Cases Cited: Armishaw v Denby Horton (NZ) Ltd [1984] 1 NZLR 44
Cavacourt Pty Ltd v Durian (Holdings) Pty Ltd (1998) 9 BPR 16,833
Bracewell v Appleby [1975] Ch 408
Bulstrode v Lambert [1953] 1 WLR 1064
Butler v Muddle (1995) 6 BPR 13,984
Castagna v Great Wall Resources Pty Ltd (2005) 12 BPR 23,363
Chiu v Healey (2003) 11 BPR 21,241
Durian (Holdings) Pty Ltd v Cavacourt Pty Ltd (2000) 10 BPR 18, 099
Frasers Lorne Pty Ltd v Joyce Goldsworthy Burke & Ors [2008] NSWSC 743
Grill v Hockey (1991) 5 BPR 11,421
Harris v Flower & Sons (1904) 74 LJ Ch 127
Heaton v Loblay (1959) 60 SR (NSW) 332
Hemmes Hermitage Pty Ltd v Abdurahman (1991) 22 NSWLR 343
In re Truman, Hanbury, Buxton & Company Ltd's Application [1956] 1 QB 261
Laris v Lin [2015] NSWSC 473
Markos v O R Autor Pty Ltd [2007] NSWSC 810
Middleton v Arthur [2002] NSWSC 627
Nickerson v Barroughclough [1980] Ch 325
O’Donnell v Furci [2006] NSWSC 753
Owners of East Fremantle Shopping Centre West Strata Plan 8618 v Action Supermarkets Pty Ltd (2008) 37 WAR 498
Paterson and Barr Ltd v University of Otago [1925] NZLR 191
Perpetual Trustee Company Ltd v Westfield Management Ltd [2006] NSWCA 337
Pieper v Edwards (1982) 1 NSWLR 336
Proprietors of Strata Plan No 9,968 v…

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 Laris v Lin (No 2)

Details

AGLC: Laris v Lin (No 2) [2016] NSWSC 560
Case: [2016] NSWSC 560
Decision Date: 09 May 2016

CaseChat Overview and Summary

In Laris v Lin (No 2), the dispute involved easements over a property in Sydney, focusing on two rights of carriageway. The case was heard in the Supreme Court of New South Wales. The original proceedings were initiated by the owner of the dominant tenement who sought to extinguish or vary the rights of carriageway. However, these proceedings were discontinued due to the dominant tenement owner's bankruptcy. Subsequently, the owner of the servient tenement continued the application for extinguishment on a cross-claim.

The central legal issues the court had to resolve were the construction of the rights of carriageway and whether these rights should be deemed obsolete or if they impeded the reasonable use of the servient tenement without providing a practical benefit to the dominant tenement. Additionally, the court needed to determine whether the rights had been abandoned, whether their extinguishment would substantially injure the person entitled to them, and if the dominant tenement owner was entitled to park vehicles on the right of carriageway if the rights were not extinguished.

The court ruled that the rights of carriageway should be deemed obsolete as they were not being used and did not provide any practical benefit to the dominant tenement. The court found that the rights impeded the reasonable use of the servient tenement, and their extinguishment would not substantially injure the person entitled to them. Consequently, the court allowed the application to extinguish the rights of carriageway. The court also determined that the dominant tenement owner was not entitled to park vehicles on the right of carriageway if the rights were not extinguished.

The court ordered the extinguishment of the two rights of carriageway and clarified that the dominant tenement owner could not park vehicles on the right of carriageway if the rights were not extinguished. This decision provided a clear resolution to the dispute over the easements and the rights of carriageway in question.

Orders