Lowe v Kladis

Case [2018] NSWCA 130


Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Lowe v Kladis [2018] NSWCA 130
Hearing dates: 14 March 2018
Decision date: 20 June 2018
Before: Meagher JA at [1];
White JA at [2];
Sackville AJA at [4]
Decision:

1.   Appeal allowed.
2.   The orders made by Beech-Jones J on 23 June 2017 be set aside.
3.   The orders as to costs made by Beech-Jones J on 19 September 2017 be set aside.
4.   In lieu of the orders referred to in Orders 2 and 3 above make the following orders:
(1)   Dismiss the proceedings.
(2)   The plaintiff pay the defendants’ costs of the proceedings.
5.   The respondent pay the appellants’ costs of the appeal.
6.   The respondent have a certificate pursuant to the Suitors Fund Act 1951 (NSW).

Catchwords:

EASEMENTS – proposed construction of an elevated driveway to provide vehicular access to a lot - driveway to be built partly over land owned by the lot owner but subject to easements of carriageway and partly on land over which the lot owner has an easement of carriageway – whether the primary Judge erred in requiring the parties affected by the proposal to consent to the lot owner’s development application – whether the proposal unreasonably interfered with the easements of carriageway held by the dominant owners – whether the proposal unreasonably interfered with the rights of the owner of the land subject to the lot owner’s easement

  PARTIES – whether other lot owners affected by the proposed driveway should have been joined as parties
Legislation Cited:

Conveyancing Act 1919 (NSW), s 181A(1), Pt 1, Sch 8
Environmental Planning and Assessment Act 1979 (NSW)
Real Property Act 1900 (NSW), s 42(1)(a1)
Suitors Fund Act 1951 (NSW)
Supreme Court Act 1970 (NSW), s 63

 

Environmental and Planning Assessment Regulation 2000 (NSW), cl 49(1)(b)

Uniform Civil Procedure Rules 2005 (NSW) r 6.23
Cases Cited: 117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 (1998) 43 NSWLR 504
Boglari v Steiner School and Kindergarten (2007) 20 VR 1; [2007] VSCA 58
Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424; [2001] FCA 1833
Gallagher v Rainbow (1994) 179 CLR 624; [1994] HCA 24
Hare v Van Brugge (2013) 84 NSWLR 41; [2013] NSWCA 74
Hemmes Hermitage Pty Ltd v Abdurahman (1991) 22 NSWLR 343
House v The King (1936) 55 CLR 499; [1936] HCA 40
Jelbert v Davis [1968] 1 WLR 589
Kladis v Lowe [2016] NSWSC 1834
Kladis v Lowe (No 2) [2017] NSWSC 249
Kladis v Lowe (No 3) [2017] NSWSC 815
Kladis v Lowe (No 4) [2017] NSWSC 1259
Menzies v Paccar Financial Pty Ltd (No 4) [2014] NSWCA 210
Middleton v Arthur [2002] NSWSC 627
Panfili v Lawless [2010] NSWSC 79; (2010) 14 BPR 27283
Pettey v Parsons [1914] 2 Ch 653
Philip v JPM Developments Pty Ltd [2015] NSWSC 145; (2015) 17 BPR 33887
Powell v Langdon (1944) 45 SR (NSW) 136

Continue reading Lowe v Kladis

Sign in free to access the full text

Details
AGLC
Lowe v Kladis [2018] NSWCA 130
Case
[2018] NSWCA 130
Decision Date

CaseChat Overview and Summary

The appeal in *Lowe v Kladis* concerned a dispute over the proposed construction of an elevated driveway. The plaintiff, the owner of a lot, sought to build this driveway to provide vehicular access. The driveway was to be constructed partly over land owned by the plaintiff but subject to easements of carriageway, and partly on land over which the plaintiff held an easement of carriageway. The defendants were owners of other lots affected by the proposed construction. The case was heard in the Court of Appeal of New South Wales.

The primary legal issues before the Court of Appeal were whether the primary judge erred in requiring the parties affected by the proposed driveway to consent to the plaintiff's development application, whether the proposed driveway unreasonably interfered with the easements of carriageway held by the dominant owners, and whether the proposal unreasonably interfered with the rights of the owner of the land subject to the plaintiff's easement. A related issue was whether other lot owners affected by the proposed driveway should have been joined as parties to the proceedings.

The Court of Appeal allowed the appeal, setting aside the orders made by the primary judge. The Court found that the primary judge had erred in requiring the consent of affected parties and in making orders that effectively prevented the plaintiff from proceeding with the development. The Court determined that the proposed driveway did not unreasonably interfere with the rights of the dominant owners or the servient owner. Consequently, the Court dismissed the proceedings and ordered the plaintiff to pay the defendants' costs of the proceedings and the respondent to pay the appellants' costs of the appeal, with the respondent receiving a certificate under the Suitors Fund Act 1951 (NSW).

Orders

Orders of the court

1. Appeal allowed.

2. The orders made by Beech-Jones J on 23 June 2017 be set aside.

3. The orders as to costs made by Beech-Jones J on 19 September 2017 be set aside.

4. In lieu of the orders referred to in Orders 2 and 3 above make the following orders:

(1) Dismiss the proceedings.

(2) The plaintiff pay the defendants’ costs of the proceedings.

5. The respondent pay the appellants’ costs of the appeal.

6. The respondent have a certificate pursuant to the Suitors Fund Act 1951 (NSW).

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.