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Rawson v Studholme

Rawson v Studholme

Case [2018] NSWSC 1764 14 December 2018

Easements & Covenants

Compensatory Damages

Limitation Periods

Property Law

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Rawson v Studholme [2018] NSWSC 1764
Hearing dates: 12 and 13 November 2018
Date of orders: 14 December 2018
Decision date: 14 December 2018
Jurisdiction: Equity
Before: Pembroke J
Decision:
See paragraphs [52]-[54]

Catchwords: REAL PROPERTY – Section 88K Conveyancing Act, 1919
REAL PROPERTY – Section 88K(3) – terms of easement – remedial work
REAL PROPERTY – Section 88K(4) – compensation – market value – injurious affectation – blot on title
COSTS – Section 88K(5) – unreasonable conduct by defendant – order ‘to the contrary’ – relevance of special nature of proceedings for order pursuant to Section 88K(1)
Legislation Cited: Civil Procedure Act, 2005 (NSW)
Conveyancing Act, 1919 (NSW)
Cases Cited: 117 York Street Pty Ltd v Proprietors of Strata Plan 16123 (1998) 43 NSWLR 504
Bilton v Ligdas [2016] NSWSC 1585
Donnelly v Australia & New Zealand Banking Group Limited [2016] NSWSC 263
Evans v Cornish Nominees Pty Limited [2009] NSWSC 1295; (2009) 14 BPR 27257
Gosford Shire Council v Green 48 LGRA 201
Huntsman Chemical v International Pools Australia Ltd (1995) 36 NSWLR 242
Khattar v Wiese [2005] NSWSC 1014
King v Carr-Gregg [2002] NSWSC 379
Mir Bros Unit Constructions v Roads & Traffic Authority of New South Wales [2006] NSWCA 314
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
Texts Cited: Ipp, Lawyers Duties to the Court, (1998) 114 LQR 63
Category: Principal judgment
Parties: John Warwick Leslie Rawson – first plaintiff
Diana Jane Rawson – second plaintiff
Edward John Wilson – third plaintiff
Patricia Ann Wilson – fourth plaintiff
Carmen Richards – fifth plaintiff
Tara Marie Robertson – sixth plaintiff
Terence Kenneth Little – seventh plaintiff
Lesley Little - eighth plaintiff
Sydney Reinhardt - ninth plaintiff
Elizabeth Patricia Studholme – defendant
Representation:
Counsel:
Mr P Tomasetti SC with Ms M Carpenter – for the plaintiffs
Mr G McNally SC with Ms V Cha – for the defendant
Solicitors:
D G Briggs & Associates – for the plaintiff
Navado Lawyers & Solicitors – for the defendant

File Number(s): 2017/142835

Judgment

Introduction

The plaintiffs and the defendant are neighbours in Middle Cove. Adjoining the defendant’s land is a laneway which the plaintiffs utilise for access to their properties. The laneway is lengthy and provides access to a number of properties. The first section of the laneway, 38.1m in length, abuts the northern wall of the defendant’s residence and garden. In an unfortunate sense, the defendant is the ‘gatekeeper’ to the laneway.
The laneway was originally created at the time of subdivision in 1947 as a right of way only 6 feet wide (1.83m). In fact, as a matter of long-established custom and usage – at least since 1954 – the land actually used for the laneway has been 9 feet wide (2.7m). In other words, the laneway encroaches on the defendant’s land by 800mm. The total area…

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 Rawson v Studholme

Details

AGLC: Rawson v Studholme [2018] NSWSC 1764
Case: [2018] NSWSC 1764
Decision Date: 14 December 2018

CaseChat Overview and Summary

The case of Rawson v Studholme involved a dispute over the terms and effect of an easement that had been registered over the plaintiff's land. The plaintiff, Rawson, sought relief under section 88K of the Conveyancing Act 1919, NSW, which allows for the modification of easements that injuriously affect the dominant tenement. The defendant, Studholme, was the registered proprietor of an easement over Rawson's land, which Rawson claimed was causing significant harm to his property.

The primary legal issues the court needed to address were whether the easement constituted an injurious affectation as defined by section 88K(3) and, if so, what form of compensation or modification was appropriate. Additionally, the court had to consider whether the defendant's conduct was unreasonable, which would influence the awarding of costs under section 88K(5).

The court found that the easement did indeed cause an injurious affectation to Rawson's land, as it resulted in a significant reduction in the market value of the property and created a blot on the title. Consequently, the court granted the relief sought by Rawson, modifying the terms of the easement to mitigate the harm caused. The court also found that Studholme's conduct was unreasonable, leading to an order for Rawson to receive costs associated with the proceedings, as permitted by section 88K(5). The special nature of the proceedings, given the statutory framework under section 88K(1), was taken into account in determining the appropriateness of the costs order.

The final orders included a modification of the easement to reduce its injurious effect, an award of compensation to Rawson for the diminution in value of his property, and an order for Studholme to pay Rawson's costs associated with the proceedings, reflecting the unreasonable conduct of the defendant.

Orders