McGrath v Mestousis - [2017] NSWSC 995

Supreme Court

New South Wales

Medium Neutral Citation: McGrath v Mestousis [2017] NSWSC 995
Hearing dates: 19 – 20 June 2017
Date of orders: 27 July 2017
Decision date: 27 July 2017
Jurisdiction: Equity
Before: Darke J
Decision:
Easement imposed pursuant to s 88K of the Conveyancing Act for drainage of water.

Catchwords: LAND LAW – easements – imposition of easements by Court – stormwater drainage easement associated with development of residential land – whether easement reasonably necessary for effective use or development of the land – effect of easement upon servient tenement – risk of damage caused by easement works – difficulty in carrying out easement works in compliance with conditions of consent – easement imposed
Legislation Cited: Conveyancing Act 1919 (NSW), s 88K
Environmental Planning and Assessment Act 1979 (NSW), ss 80(3), 95(6)
Uniform Civil Procedure Rules 2005 (NSW), rr 20.14, 31.46
Cases Cited: Govindan-Lee v Sawkins (2016) 18 BPR 35,883; [2016] NSWSC 328
Khattar v Wiese (2005) 12 BPR 23,235; [2005] NSWSC 1014
Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd (2012) 16 BPR 31,257; [2012] NSWCA 445
Shi v ABI-K Pty Ltd (2014) 87 NSWLR 568; [2014] NSWCA 293
Category: Principal judgment
Parties: Patrick Raymond McGrath (First Plaintiff)
Sally Jane McGrath (Second Plaintiff)
Kristo Mestousis (Defendant)
Representation:
Counsel:
Mr P G Bolster (Plaintiffs)
Mr A M Gruzman (Defendant)
Solicitors:
Marando Solicitors (Plaintiffs)
Owen Hodge Lawyers (Defendant)

File Number(s): 2014/63536
Publication restriction: None

Judgment

The plaintiffs in these proceedings are the owners of a property at 32 Darwin Street, West Ryde. They bring an application under s 88K of the Conveyancing Act 1919 (NSW) for the imposition of an easement for stormwater drainage over a property at 31 Huxley Street, West Ryde, owned by the defendant. The plaintiffs contend that the easement is necessary to enable them to carry out a home unit development on their land. The easement is opposed by the defendant.
The proceedings, which were commenced in February 2014, have had a long and difficult history.
The plaintiffs’ 32 Darwin Street property (“32 Darwin”) lies roughly to the north of the defendant’s 31 Huxley Street property (“31 Huxley”). The properties share a common boundary at the rear of each property. By their Amended Summons filed in Court on the first day of the hearing, the plaintiffs seek an easement to drain stormwater one metre wide “at the location identified by Mr Kenny in his report to the Court dated December 2014”. That is a reference to Mr Bruce Kenny who was, by consent of the parties, appointed by the Court as an expert pursuant to Uniform Civil Procedure Rules 2005 (NSW) r 31.46. Mr Kenny is a qualified engineer with extensive experience in the design of stormwater drainage systems. He was appointed to inquire into and report on:

(1) The necessity of an easement to drain water benefiting the property known as 32 Darwin Street West Ryde given the development proposed;
(2) The necessity to impose an easement to drain water…

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 McGrath v Mestousis

Details

AGLC: McGrath v Mestousis [2017] NSWSC 995
Case: [2017] NSWSC 995
Decision Date: 27 July 2017

CaseChat Overview and Summary

The matter of McGrath v Mestousis involved a dispute over the imposition of a stormwater drainage easement associated with the development of residential land. The case was heard and determined in the New South Wales Land and Environment Court. The plaintiff, McGrath, sought to establish a stormwater drainage easement across the land owned by the defendant, Mestousis, to facilitate the effective use and development of McGrath's land.

The legal issues central to the decision centred on whether the proposed easement was reasonably necessary for the effective use or development of McGrath's land and the impact such an easement would have on Mestousis's land. Furthermore, the court had to consider the risk of damage to Mestousis's land caused by the easement works and the difficulty in carrying out the works in compliance with the conditions of consent.

In delivering the judgment, the court found that the proposed stormwater drainage easement was reasonably necessary for the effective use or development of McGrath's land. It was determined that the easement would not cause significant harm to Mestousis's land and that the risk of damage was manageable. The court imposed the easement, emphasising the importance of the conditions of consent being adhered to in the execution of the works. The court concluded that the easement was essential for the practical use of McGrath's land and was therefore necessary for its development.

Orders