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Menassa v Shi

Menassa v Shi

Case [2023] NSWSC 54 10 February 2023

Easements & Covenants

Unconscionable Conduct

Compensatory Damages

Property Law

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Supreme Court

New South Wales

Medium Neutral Citation: Menassa v Shi [2023] NSWSC 54
Hearing dates: 6, 7 and 8 July 2022
Date of orders: 10 February 2023
Decision date: 10 February 2023
Jurisdiction: Equity
Before: Henry J
Decision:
Order to be made pursuant to s 88K of the Conveyancing Act 1919 (NSW) imposing a drainage easement over the defendants’ land.

Catchwords:
LAND LAW — Easements — application for easement under s 88K of the Conveyancing Act 1919 (NSW) — drainage easement associated with residential dual occupancy development — requirement for drainage easement by council’s deferred commencement development condition — whether easement reasonably necessary for effective use or development of plaintiff’s land — assessment of impact on defendants’ land — whether easement over neighbouring land is viable alternative — whether plaintiff made all reasonable attempts to obtain easement — whether plaintiff provided sufficient information to enable the defendants to understand the proposal – where easement proposal modification made — whether discretion to impose easement should not be exercised due to plaintiff’s conduct — where defendants raise procedural mistake by council — assessment of compensation — easement imposed

Legislation Cited:
Conveyancing Act 1919 (NSW)
Environmental Planning & Assessment Act 1979 (NSW)
Land and Environment Court Act 1979 (NSW)
Uniform Civil Procedure Rules 2005 NSW

Cases Cited:
117 York Street Pty Ltd v Proprietors of Strata Plan 16123 (1998) 43 NSWLR 504
City of Canterbury v Saad (2013) 195 LGERA 329; [2013] NSWCA 251
Community Association DP270447 v ATB Morton Pty Ltd (2019) 240 LGERA 32; [2019] NSWCA 83
Diro Group Pty Ltd v Leuzinger [2021] NSWLEC 107
Gordon v Lever (2018) 97 NSWLR 90; [2018] NSWCA 43
Gordon v Lever (No 2) (2019) 101 NSWLR 427; [2019] NSWCA 275
ING Bank (Aust) Ltd v O’Shea (2010) 14 BPR 27,317; [2010] NSWCA 71
Khattar v Wiese (2005) 12 BPR 23,235; [2005] NSWSC 1014
Lonergan v Lewis [2011] NSWSC 1133
McGrath v Mestousis [2017] NSWSC 995
Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd (2012) 16 BPR 31,257; [2012] NSWCA 445
Rainbowforce Pty Ltd v Skyton Holdings Pty Ltd (2010) 171 LGERA 286; [2010] NSWLEC 2
Shi v Abi-K Pty Ltd (2014) 87 NSWLR 568; [2014] NSWCA 293
Studholme v Rawson [2020] NSWCA 76
The Owners – Strata Plan 85044 v Murrell; Murrell v The Owners – Strata Plan 85044 [2020] NSWSC 20
The Uniting Church in Australia Property Trust (NSW) v Woollahra Municipal Council [2019] NSWLEC 1237
Weissflog v Community Association DP 270159 (2022) 20 BPR 42,265; [2022] NSWSC 239

Texts Cited:
Nil

Category: Principal judgment
Parties: Simon Pierrot Menassa (Plaintiff)
Wenming Shi (First Defendant)
Ping Wang (Second Defendant)
Representation:
Counsel:
Ms L Nurpuri (Plaintiff)

Solicitors:
Foteades Freeman Cohen (Plaintiff)
Self-represented:
Wenming Shi and Ping Wang (First and Second Defendants)

File Number(s): 2021/00131424
Publication restriction: Nil

Judgment

The plaintiff, Mr Simon Menassa, is the registered proprietor of land at 1 Maismonde Place, Carlingford, within Folio Identifier 67/31228 (1 Maismonde).
In…

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 Menassa v Shi

Details

AGLC: Menassa v Shi [2023] NSWSC 54
Case: [2023] NSWSC 54
Decision Date: 10 February 2023

CaseChat Overview and Summary

In the case of Menassa v Shi, the plaintiff sought to establish a drainage easement on the defendants' property under section 88K of the Conveyancing Act 1919 (NSW). The plaintiff, who owned a residential dual occupancy development, sought the easement to comply with a deferred commencement development condition imposed by the council. The dispute centred on whether the easement was reasonably necessary for the effective use or development of the plaintiff's land and the impact on the defendants' property. The court also needed to determine if an easement over the neighbouring land was a viable alternative, whether the plaintiff had made all reasonable attempts to obtain the easement, and whether the plaintiff had provided sufficient information to the defendants to understand the proposal.

The court found that the plaintiff had made all reasonable attempts to obtain the easement, including providing detailed information to the defendants. The court assessed that the easement was reasonably necessary for the effective use or development of the plaintiff's land and that an easement over the neighbouring land was not a viable alternative. The court rejected the argument that the discretion to impose the easement should not be exercised due to the plaintiff's conduct, as the plaintiff had acted in good faith and provided sufficient information to the defendants. The court also considered the procedural mistake by the council in the development condition but found that this did not affect the validity of the plaintiff's application.

The court imposed the drainage easement, ordering the defendants to allow the plaintiff to establish the easement on their land. The court assessed the compensation for the defendants, taking into account the impact on their property and the benefits to the plaintiff's development. The court emphasised the importance of providing detailed information and acting in good faith when seeking to establish an easement under section 88K of the Conveyancing Act 1919 (NSW). The final orders included the imposition of the drainage easement and the assessment of compensation for the defendants.

Orders