Papas v Grave - [2013] NSWSC 849

Supreme Court

New South Wales

Medium Neutral Citation: Papas v Grave [2013] NSWSC 849
Hearing dates: 23 and 24 April 2013 and 6 June 2013
Decision date: 26 June 2013
Jurisdiction: Equity Division
Before: Bergin CJ in Eq
Decision:
Defendants to pay the plaintiffs' costs of the proceedings

Catchwords: [EASEMENTS] - whether proposed works on right of way by owners of dominant tenement reasonably necessary for enjoyment of use - whether refusal by owners of servient tenement to consent to lodgement of development application for proposed works without any lawful reason.
[COSTS] - where defendants agreed to give consent at conclusion of the evidence - whether in all the circumstances the plaintiffs should have a costs order in their favour.
Legislation Cited: Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Regulation 2000
Uniform Civil Procedure Rules 2005
Cases Cited: 117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 (1998) 43 NSWLR 504
Bishop v State of New South Wales (Supreme Court of New South Wales, Dunford J, 17 December 2000, unreported)
Bland v Levi (2000) 9 BPR 17,517
Calderbank v Calderbank [1975] Fam 93 333
Kirkjian v Towers (Supreme Court of New South Wales, Waddell CJ in Eq, 6 July 1987, unreported)
Old v McInnes [2011] NSWCA 410
Papas v Grave [2012] NSWSC 1461
Re the Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; Ex parte Lai Qin (1997) 186 CLR 622
Zenere v Leate (1980) 1 BPR 9300
Category: Costs
Parties: Peter Dimitri Papas (1st Plaintiff)
Tami Lynn Papas (2nd Plaintiff)
Jiefang Huang (3rd Plaintiff)
Warwick Sutton Grave (1st Defendant)
Julianne Grave (2nd Defendant)
Representation: CRC Newlinds SC/T Fishburn (23 & 24 April 2013)/SB Nash (6 June 2013) (Plaintiffs)
FG Kalyk/G Antipas (23 and 24 April 2013) (Defendants)
Stephen Wawn & Associates (Plaintiffs)
Evangelos Patakas & Associates (Defendants)

File Number(s): 2011/301407

Judgment

The plaintiffs, Mr Peter Dimitri Papas and Mrs Tami Lynn Papas, commenced these proceedings by Statement of Claim filed on 19 September 2011 seeking an order that the defendants, Dr Warwick Sutton Grave and Mrs Julianne Grave, sign "a statement to the effect that they consent to the lodging of a Development Application with Mosman Council" for development consent to make alterations and improvements to a driveway constructed, inter alia, on the right of carriageway over the defendants' land.

The plaintiffs and the defendants were neighbours. The third plaintiff, Jiefang Huang, purchased the property from Mr and Mrs Papas after the proceedings were commenced. The right of carriageway provides access both to the plaintiffs' home at the top of the driveway and to the defendants' garage at the bottom of the driveway. The driveway is on a rather sharp incline from the street running up to the plaintiffs' boundary past the defendants' home on the eastern side of the driveway.

The main proceedings were heard on 23 and 24 April 2013. Mr CRC Newlinds SC leading Ms T Fishburn, of counsel, appeared for the plaintiffs. Mr FG Kalyk…

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 Papas v Grave

Details

AGLC: Papas v Grave [2013] NSWSC 849
Case: [2013] NSWSC 849
Decision Date: 26 June 2013

CaseChat Overview and Summary

In the case of Papas v Grave, the primary dispute involved the owners of two neighbouring properties, with the plaintiffs seeking to exercise their rights under an easement over the defendants' land. The plaintiffs aimed to construct a driveway on their property, which required certain modifications to the existing right of way. The defendants, however, refused to consent to the lodgement of a development application for these proposed works. The case was heard in the Supreme Court of New South Wales.

The central legal issues that the court had to address were whether the proposed works on the right of way were reasonably necessary for the plaintiffs to enjoy the use of their dominant tenement and whether the defendants had lawfully refused to consent to the lodgement of a development application. The court had to interpret the nature and extent of the easement and the rights and obligations of the parties involved.

The court found that the proposed works were reasonably necessary for the plaintiffs to enjoy the use of their dominant tenement, as they were essential for the practical use of the driveway. The court also concluded that the defendants had refused to consent to the lodgement of the development application without any lawful reason. As a result, the court ruled in favour of the plaintiffs. Regarding the costs, although the defendants agreed to give consent at the conclusion of the evidence, the court considered all the circumstances and decided that the plaintiffs were entitled to a costs order in their favour.

The court's final orders included a declaration that the proposed works on the right of way were reasonably necessary and that the defendants' refusal to consent to the lodgement of the development application was unlawful. Additionally, the court ordered the defendants to consent to the lodgement of the development application and granted the plaintiffs a costs order.

Orders