Sheppard v Smith

The case before the court involved the plaintiffs, Sheppard, who sought the extinguishment of a right of way over their land held by the defendants, Smith. The plaintiffs argued that the easement, which had been established over their property for many years, had become obsolete and no longer served any practical benefit to the defendants. The case was heard and determined by the Supreme Court of Victoria.

The legal issues central to the case revolved around the criteria for extinguishing an easement under section 89(1A) of the Conveyancing Act, specifically whether the easement had been abandoned and whether its continued existence would impede the reasonable use of the plaintiffs' land without securing any practical benefit to the defendants. The court also had to consider whether the extinguishment of the easement would cause substantial injury to the defendants.

The court found that the easement had effectively been abandoned by the defendants, evidenced by the absence of use and the lack of any intention to resume its use. The court also concluded that the easement had become obsolete and that its continued existence would impede the reasonable use of the plaintiffs' land without any practical benefit to the defendants. The court exercised its discretion under section 89(1A) of the Conveyancing Act and determined that the extinguishment of the easement would not cause substantial injury to the defendants. Consequently, the court granted the plaintiffs' application for the extinguishment of the right of way.