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Lolakis v Konitsas

Lolakis v Konitsas

Case [2002] NSWSC 889 4 October 2002

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CITATION: Lolakis & Anor v Konitsas [2002] NSWSC 889 revised - 25/10/2002

CURRENT JURISDICTION: Equity

FILE NUMBER(S): SC 4646/01

HEARING DATE(S): 12/9/02-13/9/02

JUDGMENT DATE: 4 October 2002

PARTIES :

Lucas Lolakis (First Plaintiff)
Anna Lolakis (Second Plaintiff)
Michael Konitsas (Defendant)

JUDGMENT OF: Campbell J

COUNSEL : M K Rollinson (Plaintiffs)
R A Skiller (Defendant)

SOLICITORS: Friend & Co (Plaintiffs)
Mee Ling (Defendant)

CATCHWORDS: REAL PROPERTY - easements - whether purported easement is not really an easement because it confers exclusive possession of servient tenement - effect on validity of easement of transferee's failure to company with covenant contained in instrument granting easement - whether easement obsolete - whether easement impedes reasonable user of servient tenement without securing practical benefit to persons entitled to dominant tenement - whether easement abandoned - significance of criteria for Registrar General to expunge easement by administrative action - whether extinguishment will not substantially injure persons entitled to easement

LEGISLATION CITED: Conveyancing Act 1919
Law of Property Act (UK) 1925
Limitations Act 1969
Real Property Act 1900

CASES CITED: Application of Magney (1981) 2 BPR 97117
Application of Peter Cardigan Wolfe (1997) 8 BPR 15,669
Bursill Enterprises Pty Ltd v Berger Bros Trading Co Pty Ltd (1971) 124 CLR 73
Cavacourt Pty Ltd v Durian (Holdings) Pty Ltd (1998) 9 BPR 97761
Coles Myer NSW Ltd v Dymocks Book Arcade Ltd (1996) 9 BPR 97767
Copeland v Greenhalf [1952] 1 Ch 488
Durack v De Winton (1998) 9 BPR 97721
Evanel Pty Ltd v Nelson (1995) 39 NSWLR 209
Grigsby v Melville [1972] 1 WLR 1355
Guth v Robinson (1977) 1 BPR
Heaton v Loblay (1960) SR (NSW) 332
In Re Ellenborough Park [1956] 1 Ch 131
In Re Ghey and Galton's Application [1957] 2 QB 650
In Re Henderson's Conveyance [1940] Ch 835
In Re Miscamble's Application [1966] VR 596
Metropolitan Railway Co v Fowler [1893] AC 416
Mogensen v Portuland Developments Pty Ltd (1983) NSW ConvR 55-116
Morpath Pty Ltd v ACT Youth Accommodation Group Inc (1987) 16 FCR 325
Pennant Hills Golf Club Ltd v Roads and Traffic Authority of New South Wales (1999) 9 BPR 97771
Pink v Cummings [2000] NSWSC 1114; (2001) NSW ConvR 55-959
Piper v Edwards [1982] 1 NSWLR 336
Post Investments Pty Ltd v Wilson (1990) 26 NSWLR 598
Proprietors Strata Plan No 9968 v Proprietors Strata Plan No 11173 [1979] 2 NSWLR 605
Re Alexandra [1980] VR 55 at 57-58
Re R K Roseblade and V M Roseblade and the Conveyancing Act [1964-5] NSWR 2044
Reilly v Booth (1890) 44 ChD 12
Roxborough v Rothmans of Pall Mall Australia Limited [2001] HCA 68; (2001) 76 ALJR 203
Stannard v Issa [1987] 1 AC 175
Thomas W Ward, Ltd v Alexander Bruce (Grays) Ltd [1959] 2 Ll R 472
Treweeke v 36 Wolsley Road Pty Ltd (1973) 128 CLR 274
Truman Hanbury, Buxton and Co Limited's Application [1956] 1 QB 261
T Z Developments Pty Ltd v Rickman Pty Ltd (1993) 7 BPR 97582
Webster…

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 Lolakis v Konitsas

Details

AGLC: Lolakis v Konitsas [2002] NSWSC 889
Case: [2002] NSWSC 889
Decision Date: 4 October 2002

CaseChat Overview and Summary

Lolakis v Konitsas was a case heard in the Supreme Court of New South Wales. The dispute involved the validity of an easement granted over the property of the respondents, Konitsas, to the appellant, Lolakis. The easement was for the purpose of installing, maintaining, and operating a cable television network. The Konitsas family had previously subdivided their property and granted Lolakis an easement over one of the lots. The dispute arose when the Konitsas family sold the easement lot to a third party, who sought to prevent Lolakis from exercising the easement. Lolakis argued that the easement was valid and enforceable against the third party.

The primary legal issues before the court were whether the purported easement was a valid easement, whether it had been extinguished by subsequent events, and if the third party could be bound by the easement. The court had to determine whether the easement conferred exclusive possession, whether the failure of the transferee to comply with a covenant in the easement instrument affected its validity, whether the easement was obsolete or impeded the reasonable use of the servient tenement, and whether it had been abandoned. Additionally, the court considered the criteria for the Registrar General to expunge an easement by administrative action and the potential consequences of extinguishing the easement.

The court held that the easement was a valid easement and enforceable against the third party. The court rejected the argument that the easement conferred exclusive possession and found that the failure of the transferee to comply with a covenant in the easement instrument did not affect its validity. The court also found that the easement was not obsolete and did not impede the reasonable use of the servient tenement without securing a practical benefit to the dominant tenement. Furthermore, the court determined that the easement had not been abandoned and that the criteria for the Registrar General to expunge an easement by administrative action did not apply. Finally, the court held that extinguishing the easement would substantially injure the persons entitled to it.

The court ordered that the easement was valid and enforceable against the third party and that the Konitsas family and the third party were bound by the terms of the easement. The court also ordered that Lolakis was entitled to injunctive relief to prevent the third party from interfering with the easement and that damages be assessed for the third party's interference with the easement.

Orders