Sheppard v Smith - [2022] NSWCA 167

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Sheppard v Smith [2022] NSWCA 167
Hearing dates: 8 June 2022
Date of orders: 29 August 2022
Decision date: 29 August 2022
Before: Gleeson JA at [1];
Beech-Jones JA at [2];
Basten AJA at [103]
Decision:
(1) Appeal dismissed.
(2) The Appellants pay the Respondents’ costs of the Appeal.

Catchwords:
EASEMENTS – application to extinguish right of way – s 89(1) Conveyancing Act – adjacent properties – obsolescence – right of way granted in 1885 in unlimited terms – purposes included, but not limited to, removal of “nightsoil”– right of way fell into disuse after sewers connected in 1908 – no error in primary judge’s finding that easement should not be deemed obsolete
EASEMENTS – abandonment – title to dominant tenement became indefeasible in 2010 – owners took ‘active steps’ to include right of way on title – servient tenement not part of appellants’ property until possessory title approved in 2019 – title granted subject to right of way fence erected between properties preventing access – garden bed and fishpond built on servient tenement – after grant of indefeasible title dominant tenement owners built new fence, shed and wall impeding access to right of way – owners of servient tenement replaced garden bed and fishpond with wall – extended room over right of way – whether intention to abandon easement should be inferred – non‑user and building of non-permanent obstacles thereafter did not establish abandonment
EASEMENTS – substantial injury – continued existence of easement would secure practical benefit to owners of dominant tenement – no error in primary judge’s finding that it was not shown that extinguishment would not substantially injure the owners of the dominant tenement – appeal dismissed

Legislation Cited:
Conveyancing Act 1919 (NSW), s 89
Real Property Act 1900 (NSW), ss 28U and 28V

Cases Cited:
Ashoil Holdings Pty Ltd v Fassoulas (2005) 12 BPR 98195; [2005] NSWCA 80
Chiu v Healey [2003] NSWSC 857
Durian (Holdings) Pty Ltd v Cavacourt Pty Ltd (2000) 10 BPR 18,099; [2000] NSWCA 28
Gotobed v Pridmore (Court of Appeal (UK), 16 December 1970, unrep)
Pieper v Edwards [1982] 1 NSWLR 336
Proprietors Strata Plan 9,968 v Proprietors Strata Plan 11,173 [1979] 2 NSWLR 605
Re Mason and the Conveyancing Act [1962] NSWR 762; (1960) 78 WN (NSW) 925
Sheppard v Smith [2021] NSWSC 1207
Swan v Sinclair [1924] 1 Ch 254
Swan v Sinclair [1925] AC 227
Treweeke v 36 Wolseley Road Pty Ltd (1973) 128 CLR 274; [1973] HCA 27
Williams v Usherwood (1983) 45 P & CR 235

Category: Principal judgment
Parties: Dean Frederick Sheppard (First Appellant)
Meredith Jane Chapman (Second Appellant)
Dean Clayton Smith (First Respondent)
Emma Jane Munro (Second Respondent)
Representation:
Counsel:
Mr GA Sirtes SC; Mr G Marsden (Appellants)
Mr JM Ireland QC (Respondents)
Solicitors:
Colquhoun v Colquhoun (Appellants)
DC Balog & Associates (Respondents)

File Number(s): 2021/296713
Decision under appeal

Court or tribunal:

Supreme Court

Jurisdiction:

Equity

Citation:

Sheppard v Smith

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 Sheppard v Smith

Details

AGLC: Sheppard v Smith [2022] NSWCA 167
Case: [2022] NSWCA 167
Decision Date: 29 August 2022

CaseChat Overview and Summary

In *Sheppard v Smith*, the New South Wales Court of Appeal considered an application to extinguish a right of way granted in 1885. The applicants, the owners of the servient tenement, sought to extinguish the easement under section 89(1) of the *Conveyancing Act 1919* (NSW), arguing it was obsolete and had been abandoned. The easement was granted in unlimited terms, with purposes including the removal of "nightsoil," and had fallen into disuse after the connection of sewers in 1908.

The Court was required to determine whether the primary judge erred in finding that the easement should not be deemed obsolete. It also had to consider whether the owners of the dominant tenement had demonstrated an intention to abandon the easement, given the passage of time, the indefeasibility of their title since 2010, and various physical impediments to the right of way that had been erected on the servient tenement. Finally, the Court had to assess whether the extinguishment of the easement would cause substantial injury to the owners of the dominant tenement.

The Court of Appeal upheld the primary judge's findings. It reasoned that the initial purpose of the easement, while including nightsoil removal, was not limited to that purpose, and therefore its obsolescence due to sewer connection was not determinative. Regarding abandonment, the Court held that mere non-user and the erection of non-permanent obstacles were insufficient to infer an intention to abandon the easement, particularly when the dominant tenement owners had taken steps to include the right of way on their title. The Court also found that the continued existence of the easement would secure a practical benefit to the dominant tenement owners, meaning its extinguishment would cause substantial injury.

Consequently, the appeal was dismissed, and the appellants were ordered to pay the respondents' costs.

Orders

Orders of the court

(1) Appeal dismissed.

(2) The Appellants pay the Respondents’ costs of the Appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Sheppard v Smith [2022] NSWCA 167
Hearing dates:	8 June 2022
Date of orders:	29 August 2022
Decision date:	29 August 2022
Before:	Gleeson JA at [1]; Beech-Jones JA at [2]; Basten AJA at [103]
Decision:	(1) Appeal dismissed. (2) The Appellants pay the Respondents’ costs of the Appeal.
Catchwords:	EASEMENTS – application to extinguish right of way – s 89(1) Conveyancing Act – adjacent properties – obsolescence – right of way granted in 1885 in unlimited terms – purposes included, but not limited to, removal of “nightsoil”– right of way fell into disuse after sewers connected in 1908 – no error in primary judge’s finding that easement should not be deemed obsolete EASEMENTS – abandonment – title to dominant tenement became indefeasible in 2010 – owners took ‘active steps’ to include right of way on title – servient tenement not part of appellants’ property until possessory title approved in 2019 – title granted subject to right of way fence erected between properties preventing access – garden bed and fishpond built on servient tenement – after grant of indefeasible title dominant tenement owners built new fence, shed and wall impeding access to right of way – owners of servient tenement replaced garden bed and fishpond with wall – extended room over right of way – whether intention to abandon easement should be inferred – non‑user and building of non-permanent obstacles thereafter did not establish abandonment EASEMENTS – substantial injury – continued existence of easement would secure practical benefit to owners of dominant tenement – no error in primary judge’s finding that it was not shown that extinguishment would not substantially injure the owners of the dominant tenement – appeal dismissed
Legislation Cited:	Conveyancing Act 1919 (NSW), s 89 Real Property Act 1900 (NSW), ss 28U and 28V
Cases Cited:	Ashoil Holdings Pty Ltd v Fassoulas (2005) 12 BPR 98195; [2005] NSWCA 80 Chiu v Healey [2003] NSWSC 857 Durian (Holdings) Pty Ltd v Cavacourt Pty Ltd (2000) 10 BPR 18,099; [2000] NSWCA 28 Gotobed v Pridmore (Court of Appeal (UK), 16 December 1970, unrep) Pieper v Edwards [1982] 1 NSWLR 336 Proprietors Strata Plan 9,968 v Proprietors Strata Plan 11,173 [1979] 2 NSWLR 605 Re Mason and the Conveyancing Act [1962] NSWR 762; (1960) 78 WN (NSW) 925 Sheppard v Smith [2021] NSWSC 1207 Swan v Sinclair [1924] 1 Ch 254 Swan v Sinclair [1925] AC 227 Treweeke v 36 Wolseley Road Pty Ltd (1973) 128 CLR 274; [1973] HCA 27 Williams v Usherwood (1983) 45 P & CR 235
Category:	Principal judgment
Parties:	Dean Frederick Sheppard (First Appellant) Meredith Jane Chapman (Second Appellant) Dean Clayton Smith (First Respondent) Emma Jane Munro (Second Respondent)
Representation:	Counsel: Mr GA Sirtes SC; Mr G Marsden (Appellants) Mr JM Ireland QC (Respondents) Solicitors: Colquhoun v Colquhoun (Appellants) DC Balog & Associates (Respondents)
File Number(s):	2021/296713
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Equity Citation: Sheppard v Smith