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Nahata v Robertson

Nahata v Robertson

Case [2023] NSWSC 642 15 June 2023

Easements & Covenants

Adverse Possession

Property Law

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Nahata v Robertson [2023] NSWSC 642
Hearing dates: 23 – 24 May 2023
Decision date: 15 June 2023
Jurisdiction: Equity - Real Property List
Before: Peden J
Decision:
Plaintiffs’ Amended Statement of Claim is dismissed: see [142]

Catchwords:
LAND LAW — Easements — Creation of easements — Creation by order of court — Where plaintiffs seeking stormwater drainage easement to facilitate residential development — Whether easement reasonably necessary for development — Whether there is sufficient evidence to determine question of reasonable necessity — Where easement not identified with precision — Where no easement imposed — Where question of compensation does not arise
LAND LAW — Easements — Whether reasonable attempts made to obtain the easement or an easement having the same effect — Where alternative easement traversed other properties — Where limited evidence of correspondence with other owners — Where uncertainties associated with proposed easement ignored — Where uncertainties related to impact on retaining wall — Where reasonable attempts not made to obtain the easement

Legislation Cited:
Conveyancing Act 1919 (NSW) ss 88(1), 88K
Evidence Act 1995 (NSW) ss 53, 91

Cases Cited:
117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 (1998) 43 NSWLR 504
Coles Myer NSW Ltd v Dymocks Book Arcade Ltd (1996) 7 BPR 14,638
Gordon v Lever (2018) 97 NSWLR 90
Govindan-Lee v Sawkins [2016] NSWSC 328
Khattar v Wiese [2005] NSWSC 1014
McGrath v Mestousis [2017] NSWSC 995
Mitchell v Boutagy [2001] NSWSC 1045
Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2012] NSWCA 445
Rainbowforce Pty Ltd v Skyton Holdings Pty Ltd [2010] NSWLEC 2
Smith v Woodley-Beattie [2009] NSWSC 380
Sodhi v Stanes [2007] NSWSC 177
Stepanoski v Chen [2011] NSWSC 1573
Studholme v Rawson (2020) 102 NSWLR 490
Tregoyd Gardens Pty Ltd v Jervis (1997) 8 BPR 15,845

Category: Principal judgment
Parties: Himanshu Nahata (First Plaintiff)
Priyanka Jain (Second Plaintiff)
Russell Robertson (First Defendant)
Stana Robertson (Second Defendant)
Representation:
Counsel:
J Lee, solicitor (Plaintiffs)
J Rogers (Defendants)
Solicitors:
Comasters Law Firm (Plaintiffs)
Specialist Law (Defendants)

File Number(s): 2022/250644
Publication restriction: Nil

JUDGMENT

The plaintiffs seek an order that the Court impose an easement pursuant to s 88K Conveyancing Act1919 (NSW) over their neighbours’ property.
In October 2021, the plaintiffs purchased a property in Dundas Valley, New South Wales, which I will refer to as “250”.
Currently on 250 stands an older sing4le storey home, which is occupied by the plaintiffs’ tenant. The plaintiffs wish to build a duplex at 250, but to comply with the conditions for development they require an easement for the drainage of stormwater that burdens the defendants’ property.
250 is a roughly square-shaped corner parcel bordered by the defendants’ property to the immediate north and the property numbered 248 to the west. The defendants’ property occupies a wedge-shaped parcel which tapers on the western end.
The two properties share a dividing fence. The defendants’ property also shares a boundary with properties running…

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 Nahata v Robertson

Details

AGLC: Nahata v Robertson [2023] NSWSC 642
Case: [2023] NSWSC 642
Decision Date: 15 June 2023

CaseChat Overview and Summary

In the Supreme Court of New South Wales, the plaintiffs sought a declaration that a stormwater drainage easement was reasonably necessary to facilitate a proposed residential development. The defendants opposed the application, arguing that the easement was not reasonably necessary and that the plaintiffs had not made reasonable attempts to obtain the easement or an alternative. The court was required to determine whether the easement was reasonably necessary for the proposed development, whether the plaintiffs had made reasonable attempts to obtain the easement, and whether compensation should be paid to the defendants if the easement was imposed.

The court held that the plaintiffs had not established that the easement was reasonably necessary for the proposed development. The court noted that the easement was not identified with precision and that the plaintiffs had not provided sufficient evidence to determine whether the easement was necessary. The court also held that the plaintiffs had not made reasonable attempts to obtain the easement or an alternative. The court found that the plaintiffs had not considered alternative easements that traversed other properties and had ignored uncertainties associated with the proposed easement, including the impact on a retaining wall. The court held that the plaintiffs had not made reasonable attempts to obtain the easement or an alternative, and that the question of compensation did not arise as no easement was imposed.

The court dismissed the plaintiffs' application for a declaration that a stormwater drainage easement was reasonably necessary for the proposed residential development. The court held that the plaintiffs had not established that the easement was reasonably necessary or that they had made reasonable attempts to obtain the easement or an alternative. The court did not make any orders for compensation as no easement was imposed.

Orders