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New South Wales |
Case Name: | Shi v ABI-K Pty Ltd |
Medium Neutral Citation: | [2014] NSWCA 293 |
Hearing Date(s): | 15 August 2014 |
Decision Date: | 28 August 2014 |
Before: | Basten JA at [1]; |
Decision: | (1) Allow the appeal in part and set aside the orders made in the Equity Division on 5 May 2014 as varied on 8 May 2014. In lieu thereof, make the following orders: |
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- AGLC
- Shi v ABI-K Pty Ltd [2014] NSWCA 293
- Case
- [2014] NSWCA 293
- Decision Date
CaseChat Overview and Summary
The Court of Appeal was required to determine whether the proposed easement was "reasonably necessary" for the effective use and development of the dominant tenement, as stipulated by section 88K. Additionally, the court considered the appropriate compensation to be paid to the landowner for the imposition of the easement and the costs of the proceedings, particularly in light of pre-trial offers and the status of one party as a self-represented litigant with limited English. The court also had to assess whether procedural fairness had been afforded to the unrepresented party.
The Court of Appeal allowed the appeal in part, setting aside the original orders. It ordered the imposition of a 900mm wide drainage easement burdening Shi's property (the servient tenement) and benefiting Abi-K's property (the dominant tenement). The court specified the location and nature of the easement, including limitations on its vertical extent. The plaintiff was directed to prepare the necessary documentation, and the defendant was ordered to execute it, with provision for the Registrar to execute it on the defendant's behalf if they failed to comply. Crucially, the court ordered compensation of $21,500 to be paid to the defendant and that the plaintiff pay the defendant's costs of the trial as a litigant in person, overturning the trial judge's cost orders. The court also made provision for the potential modification of the easement if a development consent appeal resulted in a different order from the Land and Environment Court.
Orders
Orders of the court
(1) Allow the appeal in part and set aside the orders made in the Equity Division on 5 May 2014 as varied on 8 May 2014. In lieu thereof, make the following orders:
1. (A) Order that there be imposed an easement to drain water 900 mm wide burdening Lot 4 in Deposited Plan 39083 known as 15 Blenheim Road, Carlingford in the State of New South Wales (“the servient tenement”) and benefiting Lot 2A in Deposited Plan 161330 known as 50 Felton Road, Carlingford in the State of New South Wales (“the dominant tenement”) as described in the dealing to be annexed hereto and marked “A”.
(B) Direct that the easement so described –
(a) run down the western boundary of the servient tenement;
(b) have a width of 900mm, and
(c) be limited to the soil and sub-soil of the area and not extend above the upper surface of the ground.
(C) Note that rights of access appurtenant to the easement do not extend to a height of more than 2.5 metres above the upper surface of the ground.
2. Direct the plaintiff to prepare annexure “A” and any accompanying documents to be executed by the defendant.
3. The defendant must execute a dealing in the form of annexure “A” and cause it to be returned to Madison Marcus Lawyers at Level 10, 1 Market Street, Sydney NSW or DX 13006 Sydney Market St, by 4.00pm seven days after the form and these orders have been personally served on the defendant.
4. If the defendant fails to comply with order 3 above, a Registrar in the Equity Division, Supreme Court of New South Wales, is to execute a dealing in the form of annexure “A” on behalf of the defendant, whereupon that dealing shall be deemed signed by the defendant.
5. Order that, if such payment has not already been made in accordance with the order (4) of the trial judge as varied, the plaintiff pay to the defendant compensation in the sum of $21,500.00, such payment to be tendered to the plaintiff with the form referred to in order 2.
6. With respect to the costs of the trial, order that the plaintiff repay to the defendant any costs paid by the defendant pursuant to order (5) of the trial judge and that the plaintiff pay the defendant’s costs of the trial as a litigant in person as agreed or assessed.
7. In addition to the costs borne pursuant to order (6) of the trial judge, the plaintiff is to bear all other costs of obtaining registration of the dealing referred to in order 2 above.
(2) Grant liberty to either party to apply to the duty judge in the Equity Division on 3 days’ notice in relation to the working out of these orders.
(3) Direct that, in the event the respondent appeals to the Land and Environment Court with respect to the grant or modification of a development consent with respect to the dominant tenement, the respondent may exercise its right to apply to that Court under s 40(2) of the Land and Environment Court Act 1979 (NSW) for an order under s 88K of the Conveyancing Act 1919 (NSW) and, if that Court makes such an order, the respondent shall release (or accept variation of) the easement imposed through the order of this Court so that an easement in the terms ordered by that Court may have effect in place of it.
(4) No order as to the costs of the parties in this Court.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
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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