Legal Research
Cases
O'Shea v Athanasakis

O'Shea v Athanasakis

Case [2009] NSWSC 1150 17 November 2009

No judgment structure available for this case.

Type to search within this case.

CITATION: O'Shea & Anor v Athanasakis & Ors [2009] NSWSC 1150
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 6/10/09, 7/10/09, 8/10/09

JUDGMENT DATE :
17 November 2009

JUDGMENT OF: Forster J at 1

DECISION: See paragraphs 125 and 126 of judgment.

CATCHWORDS: Loss of easement - relief against forfeiture - circumstances in which relief against forfeiture will be granted - requirement of unconscionable or unconscientious conduct - on facts, no such relief granted. -
- Conveyancing Act section 88K - imposition of easement - whether reasonably necessary - on facts, easement not imposed.

LEGISLATION CITED: Conveyancing Act 1919 (NSW)

CATEGORY: Principal judgment

CASES CITED: 117 York Street Pty Limited v Proprietors of Strata Plan No. 16123 (1998) 43 NSWLR 504
Bloom v Lepre [2008] NSWSC 79
Ciavarella v Balmer (1983) 153 CLR 438
D & D Corak Investments Pty Ltd v Yiasemides [2006] NSWSC 1419
Gittany v McDowell [2009] NSWSC 591
Hanny v Lewis (1998) 9 BPR 16,205
Legione v Hateley (1983) 152 CLR 406
Shiloh Spinners Limited v Harding [1973] AC 691
Stern v McArthur (1988) 165 CLR 489
Tanwar Enterprises Pty Ltd v Cauchi (2003) 217 CLR 315
The Owners Strata Plan No. 13635 & Ors v Ryan [2006] NSWSC 221

PARTIES: Plaintiffs- John Emmet O'Shea and Elizabeth O'Shea
First Defendant- Helen Athanasakis
Second Defendant-The Registrar General, Department of Lands
Third Defendant- ING Bank (Australia) Ltd

FILE NUMBER(S): SC 2577/09

COUNSEL: Plaintiff- I. Pike, E. Bishop
Third Defendant- D.P.Robinson SC

SOLICITORS: Plaintiff-J.P.O'Neill Solicitors
Third Defendant-Gadens Lawyers

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

FORSTER J

TUESDAY, 17 NOVEMBER 2009

(2577/09) JOHN EMMET O’SHEA & ANOR v HELEN ATHANASAKIS & ANOR

JUDGMENT

1 HIS HONOUR: In 1955, Mrs O’Shea became the registered proprietor of 27 Adelaide Street, Clontarf (“the Adelaide Street property”). In 1961 she transferred a one half interest to her husband, Mr O’Shea. Ever since that time the O’Sheas have been the registered proprietors of the Adelaide Street property. They have lived there since 1962, although Mrs O’Shea has recently moved to a nursing home and will not be returning to live in the Adelaide Street property.

2 The third defendant (“ING”) is a mortgagee in possession of property adjacent to, and directly to the south of, the Adelaide Street property, namely the property at 34 Alma Street, Clontarf (“the Alma Street property”). In 1986 an easement was registered, burdening the Adelaide Street property in favour of, and appurtenant to, the Alma Street property (“the Easement”). The Easement provided in favour of every person who was from time to time in possession of the Alma Street property a limited right of carriageway and a limited right of footway over the Adelaide Street property.

3 On 4 June 2009, this Court declared that the O’Sheas are entitled to release the Easement.

4 By its cross-claim, ING seeks:

(a) an order granting relief against forfeiture in respect of the release of…

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 O'Shea v Athanasakis

Details

AGLC: O'Shea v Athanasakis [2009] NSWSC 1150
Case: [2009] NSWSC 1150
Decision Date: 17 November 2009

CaseChat Overview and Summary

In the matter of O'Shea v Athanasakis, the court was called upon to decide whether the plaintiff was entitled to relief against the forfeiture of an easement. The defendants, Athanasakis, were the owners of a property which had previously been part of a larger parcel of land owned by the plaintiff, O'Shea. The dispute arose when the defendants sold a portion of their property, and the plaintiff claimed that the sale resulted in the loss of an easement over a driveway. The case was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was whether the plaintiff was entitled to relief against the forfeiture of an easement over the defendants' property. The court also had to consider whether the imposition of an easement over the defendants' property was reasonably necessary for the benefit of the plaintiff's property. Furthermore, the court was required to determine if the defendants had engaged in unconscionable or unconscientious conduct that would warrant relief against forfeiture.

The court found that the plaintiff was not entitled to relief against forfeiture. The court held that the defendants had not engaged in any unconscionable or unconscientious conduct that would warrant such relief. Additionally, the court held that the imposition of an easement over the defendants' property was not reasonably necessary for the benefit of the plaintiff's property. The court found that the plaintiff had other means of accessing their property without the need for the easement over the defendants' land. The court further found that the plaintiff had not demonstrated any substantial hardship that would warrant the imposition of an easement.

The court's decision resulted in the plaintiff's claim for relief against forfeiture being dismissed. The court found that the defendants were not required to grant the plaintiff an easement over their property. The court held that the plaintiff had failed to establish the necessary grounds for relief against forfeiture.

Orders