Legal Research
Cases
Lonergan v Lewis

Lonergan v Lewis

Case [2011] NSWSC 1133 13 October 2011

Easements & Covenants

Compensatory Damages

Reasonable Use

Property Law

Type to search within this case.

Supreme Court

New South Wales

Medium Neutral Citation: Phillip Edward Lonergan v Roy Lewis [2011] NSWSC 1133
Hearing dates: 20 to 21 September 2011
Decision date: 13 October 2011
Before: Ball J
Decision:
See paragraph 59 of this judgment.

Catchwords: REAL PROPERTY - easements - whether easement should be granted by Court under Conveyancing Act s 88K - rights over neighbouring property's stairs in order to access land - whether reasonably necessary - reasonableness of current property owner regarding use of stairs not relevant to question of whether easement reasonably necessary - whether plaintiff should have joined owners of neighbouring properties who also had easements over the stairs - consequences of non-joinder - compensation - assessment of compensation - can consider increased value to plaintiff when determining compensation in certain circumstances.
Legislation Cited: Conveyancing Act 1919 (NSW)
Fire Brigades Act 1989 (NSW)
Property Legislation Amendment (Easements) Act 1995 (NSW)
Cases Cited: 117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 (1998) 43 NSWLR 504
Board of Fire Commissioners (NSW) v Ardouin (1961) 109 CLR 105 at 127; [1962] ALR 719
Durack v de Winton (1998) 9 BPR 16,403
Etwell v Newcastle City Council [2006] NSWSC 1165
Goodwin v Yee Holdings Pty Ltd (1997) 8 BPR 15,795
John Alexander's Clubs Pty Ltd v White City Tennis Club Limited [2010] HCA 19; (2010) 241 CLR 1
Khattar v Wiese [2005] NSWSC 1014
Mitchell v Boutagy (2001) 10 BPR 19,187
Owners Strata Plan 13635 v Ryan [2006] NSWSC 221
Southport Corporation v Esso Petroleum Co Ltd [1953] 2 All ER 1204
State of Victoria v Sutton [1998] HCA 56; (1998) 195 CLR 291
Wengarin Pty Ltd v Byron Shire Council (1999) 9 BPR 16,985
Category: Principal judgment
Parties: Phillip Edward Lonergan (First Plaintiff)
Simone Fiona Lonergan (Second Plaintiff)
Roy Lewis (Defendant)
Representation: Mr V V Bedrossian (Plaintiffs)
Mr P M Barham (Defendant)
Etheringtons Solicitors (Plaintiffs)
John de Mestre & Co (Defendant)

File Number(s): 2011/45884

Judgment

Introduction

The plaintiffs, Mr and Mrs Lonergan, and the defendant, Mr Lewis, own properties in Seaforth which are on a point looking west over Middle Harbour. In these proceedings, Mr and Mrs Lonergan seek an order pursuant to s 88K of the Conveyancing Act 1919 (NSW) imposing an easement over Mr Lewis's land for the benefit of their property. The purpose of the easement is to facilitate access by foot to Mr and Mrs Lonergan's property.

Description of the relevant properties

It is helpful to begin by describing the relevant parcels of land and the current means of access. To do that, I propose to describe the layout of the properties looking at them from Middle Harbour (that is, looking east) and then to describe the means of access from the nearest street, which is Seaforth Crescent.

Mr Lewis's property is a battle-axe block. The axe head is adjacent to Middle Harbour and the axe handle runs up a steep hill on the right hand (southern) side of the axe…

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 Lonergan v Lewis

Details

AGLC: Lonergan v Lewis [2011] NSWSC 1133
Case: [2011] NSWSC 1133
Decision Date: 13 October 2011

CaseChat Overview and Summary

Lonergan sued Lewis to seek the grant of an easement over a set of stairs, which connected Lewis's land with a street. The stairs were located on land that Lewis owned, which was adjacent to the land that Lonergan owned. Lonergan claimed that the easement was reasonably necessary for him to access his land. Lewis opposed the grant of an easement. Lewis also claimed that Lonergan should have joined the owners of two other neighbouring properties as defendants in the proceeding because they also had easements over the stairs. Lewis further claimed that Lonergan was not entitled to compensation for the grant of an easement because he had failed to join those neighbouring property owners as parties to the proceeding. The parties cross-appealed certain aspects of the primary judge's orders. The primary judge held that Lonergan was entitled to the grant of an easement over the stairs. The primary judge also held that the plaintiff was not required to join the neighbouring property owners as defendants in the proceeding and that Lonergan was entitled to compensation for the grant of an easement. The primary judge assessed compensation by reference to the increased value to Lonergan's land that would result from the grant of an easement. Lewis and the neighbouring property owners appealed the primary judge's decision, and Lonergan cross-appealed certain aspects of the primary judge's orders.

The Court was required to determine whether an easement should be granted over the stairs. The Court was also required to determine whether Lonergan should have joined the neighbouring property owners as defendants in the proceeding. The Court was further required to determine whether Lonergan was entitled to compensation for the grant of an easement and, if so, how compensation should be assessed. The Court was also required to determine whether the primary judge's orders should be varied in certain respects.

The Court held that the grant of an easement was appropriate because it was reasonably necessary for Lonergan to access his land. The Court held that Lonergan was not required to join the neighbouring property owners as defendants in the proceeding because whether the plaintiff regarded the use of the stairs as reasonable was irrelevant to the question of whether the easement was reasonably necessary. The Court held that Lonergan was entitled to compensation for the grant of an easement. The Court held that the primary judge was entitled to assess compensation by reference to the increased value to Lonergan's land that would result from the grant of an easement. The Court held that the primary judge's orders should be varied in certain respects, and the matter was remitted to the primary judge for reassessment of compensation.

The Court allowed the appeal in part and dismissed it in part. The Court dismissed the cross-appeal in part and allowed it in part. The Court remitted the matter to the primary judge for reassessment of compensation.

Orders