Mourched v Transport for NSW

The plaintiffs, Mourched, sought leave to amend their statement of claim against Transport for NSW, requesting a court-imposed easement pursuant to section 88K of the Conveyancing Act 1919 (NSW). The defendants opposed the application, arguing that the proposed amended statement of claim would disclose no reasonable cause of action and thus be liable to be struck out. The central issue before the court was whether the plaintiffs were required to plead material facts relevant to certain conditions specified in sections 88K(2)(a)-(c) of the Conveyancing Act before being granted leave to amend their statement of claim.

The court examined the statutory preconditions outlined in section 88K(2)(a)-(c) and determined that these conditions must be met for a claim for a court-imposed easement to succeed. Specifically, the plaintiffs needed to demonstrate that the second defendant could be adequately compensated for any loss or disadvantage, and that all reasonable attempts to obtain the easement through other means had been exhausted without success. The court found that the plaintiffs' failure to adequately address these conditions in their proposed amended statement of claim rendered it vulnerable to being struck out. Consequently, the court refused the plaintiffs' application for leave to file an amended statement of claim.

Given the court's ruling, no further amendment to the statement of claim was allowed. The plaintiffs were effectively precluded from proceeding with their claim for a court-imposed easement without first addressing the deficiencies identified by the court in relation to the statutory preconditions.