Ross Bilton v Georgia Ligdas - [2016] NSWSC 1262

Supreme Court

New South Wales

Medium Neutral Citation: Ross Bilton & Ors v Georgia Ligdas [2016] NSWSC 1262
Hearing dates: 31 May - 3 June & 22 June 2016
Date of orders: 29 July 2016
Decision date: 29 July 2016
Jurisdiction: Equity
Before: Rein J
Decision:
See [128]

Catchwords: REAL PROPERTY - Easement- whether express easement exists as a matter of construction of conveyancing grant- HELD: No express easement.
REAL PROPERTY- Easement- whether there is a prescriptive easement as a result of continued use by plaintiffs and their predecessors in title, issue of permission-HELD: Prescriptive easement established for two of the three properties belonging to the Plaintiffs.
REAL PROPERTY - Easement- whether right to statutory easement exists under s.88K Conveyancing Act 1919 (NSW)- Whether ‘reasonable necessity, whether easement is inconsistent with public interest, whether all reasonable attempts made to obtain the easement- adequacy of amount not in issue-HELD: Easement granted for the benefit of the third property
Legislation Cited: Conveyancing Act 1919 (NSW)
Prescriptive Act 1832 (UK)
Real Property Act 1990 (NSW)
Cases Cited: 117 York Street Pty Limited v Proprietors Strata Plan 16123 (1998) 43 NSWLR 504
Austin v Wright (1926) 29 WALR 55
Benn v Hardinge (1992) 66 P & CR 246
Bloom v Lepre [2008] NSWSC 79; (2008) 13 BPR 24,923
Coles Myer NSW Ltd v Dymocks Book Arcade Ltd (1996) 7 BPR 14,638
Delohery v Permanent Trustee Co of NSW [1904] HCA 10; (1904) 1 CLR 283
Destri Enterprises Pty Ltd & Ors v Donald James Maxwell [2012] NSWSC 295
Dobbie v Davidson (1991) 23 NSWLR 625
Earl de la Warr v Miles (1881) 17 Ch D 535
Fernance v Simpson [2003] NSWSC 121
Gardner v Hodgson’s Kingston Brewery Co Ltd [1903] AC 229
Gangemi v Watson (1994) 11 WAR 505
Goodwin v Papadopoulous (1985) NSW Conv R 55-256
Hanny v Lewis (1998) 9 BPR 16,205
Hamilton v Joyce [1984] 3 NSWLR 279
Hollins v Verney (1884) 13 QBD 304
ING Bank (Australia) Ltd v O’Shea [2010] NSWCA 71; (2010) 14 BPR 27,317
Khatter v Wiese [2005] NSWSC 1014; (2005) 12 BPR 23,235
Long v Michie [2003] NSWSC 233
Maher v Bayview Golf Club [2004] NSWSC 275; (2004) 12 BPR 22,457
Mills v Silver [1991] Ch 271
Owners Strata Plan 13635 v Ryan [2006] NSWSC 221; (2006) 12 BPR 23,485
South Maitland Railways Pty Ltd v Satellite Centres Australia Pty Ltd [2009] NSWSC 716; (2009) 14 BPR 26,823
Treweeke v 36 Wolseley Road Pty Ltd [1973] HCA 27; (1973) 128 CLR 274
Weber v Ankin [2008] NSWSC 106; (2008) 13 BPR 25,231
Williams v State Transit Authority of NSW [2004] NSWCA 179; (2004) 60 NSWLR 286
Texts Cited: Gaunt and Morgan J’s Gale on Easements at (11th ed, 2009, Sweet & Maxwell)
P. Butt’s Land Law (18th ed, 2008, Thomson Reuters)
Category: Principal judgment
Parties: Ross Bilton (1st Plaintiff)
Clair Weaver (2nd Plaintiff)
Sinead Dwyer (3rd Plaintiff)
Alan…

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.

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Details

Case: [2016] NSWSC 1262
Decision Date: 29 July 2016

CaseChat Overview and Summary

The case of Ross Bilton v Georgia Ligdas involved a dispute over easements on properties owned by the plaintiffs. The case was heard by the Supreme Court of New South Wales. The plaintiffs, Bilton, sought to establish various easements over the defendant Ligdas's land, which was situated adjacent to their own properties. The primary issues that the court had to determine were whether an express easement existed, whether a prescriptive easement was established, and whether a statutory easement was warranted under section 88K of the Conveyancing Act 1919 (NSW).

The court first examined whether there was an express easement as a matter of construction of the conveyancing grant. The court concluded that no express easement had been established because there was insufficient evidence to support such a claim. The court then moved on to consider whether a prescriptive easement existed due to the continued use of the land by the plaintiffs and their predecessors in title. The court found that a prescriptive easement was indeed established for two of the three properties owned by the plaintiffs, based on their uninterrupted use over the required period. However, for the third property, the court found that the issue of permission rendered the establishment of a prescriptive easement problematic. Finally, the court examined whether a statutory easement was appropriate under section 88K of the Conveyancing Act 1919 (NSW). The court found that a statutory easement should be granted for the benefit of the third property, considering the reasonable necessity, lack of inconsistency with the public interest, and the fact that all reasonable attempts had been made to obtain the easement. The adequacy of the amount was not in issue.

The court granted a prescriptive easement for two of the plaintiffs' properties and a statutory easement for the third property. The defendant Ligdas was ordered to provide the necessary easements over her land to the plaintiffs. The court's decision balanced the rights of the plaintiffs to access their properties with the defendant's property rights and the public interest.

Orders