Shi v Abi-K Pty Ltd

The case of Shi v Abi-K Pty Ltd concerned an appeal to the New South Wales Court of Appeal regarding the imposition of a drainage easement. The dispute arose when Abi-K Pty Ltd sought to impose a drainage easement over land owned by Shi, which was required by the local council for development purposes. The primary issue was whether the court had the power to impose such an easement under section 88K of the Conveyancing Act 1919 (NSW) and, if so, on what terms.

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.