Smith v Woodley-Beattie - [2009] NSWSC 380

CITATION: Smith v Woodley-Beattie [2009] NSWSC 380

HEARING DATE(S): 7 & 8 May 2009

JUDGMENT DATE :
11 May 2009

JUDGMENT OF: Smart AJ

DECISION: See paragraph 78

CATCHWORDS: Easements - section 88K of Conveyancing Act - satisfaction of sections 88K(1) & (2) - assessment of adequate compensation for loss or other disadvantage - grant of easement sought not likely to have same effect as to use as easement already granted to second defendant

LEGISLATION CITED: Conveyancing Act 1919 (NSW)

CATEGORY: Principal judgment

CASES CITED: Tregoyd Gardens Pty Ltd v Jervis NSWSC Eq (unreported, Hamilton J, 25 September 1997) BC 97688, 15,845

PARTIES: Peter Christey Smith & Robyn Lynette Smith (Plaintiffs)
Jennifer Woodley-Beattie (First Defendant)
Russell John Evans (Second Defendant)

FILE NUMBER(S): SC 3569/06

COUNSEL: AG Jamieson & AB Petrie (Plaintiffs)
AL Hill (First Defendant)
EA White (Second Defendant)

SOLICITORS: Abigails (Plaintiffs)
K Harrison (First Defendant)
Delves & Wain (Second Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Smart AJ

Monday 11 May 2009

3569/06 Peter Christey Smith & Robyn Lynette Smith v Jennifer Woodley-Beattie and Russell John Evans

JUDGMENT

1 This action concerns some relatively remote rural land at Neringla near Araluen in the Shire of Eurobodalla. The closest public road is a council road known as Araluen Road. The Duea River is nearby. The plaintiffs are the joint registered proprietors of the property known as "Woolla", being Lots 87 and 122, DP 752150 and Peter Christey Smith is the sole registered proprietor of the adjoining Lot 3, DP 752140 (collectively referred to as the plaintiffs' lands). Ms Woodley-Beattie is the registered proprietor of Lot 16, DP 861498. Mr Evans is the registered proprietor of Lot 15, DP 861498. Lot 16 has an area of about 40 hectares, much of which appears to be quite rugged. Lot 16 is to the south of Lot 15 and the plaintiffs' lands are to the south of both Lots 16 and 15. Lot 15 is the dominant tenement of the right of carriageway registered in respect of Lot 16 as the servient tenement. The plaintiffs seek that they be granted an easement over such parts of Lot 16 as identified and highlighted in orange in the following plan for rights of carriageway and an order that the defendants do all things and execute all such documents as may be necessary to effect the registration of the easement so imposed.

2 The plaintiffs sought this further relief, in the alternative:

(a) a declaration that the easement over the first defendant's land does not express the true benefit to the plaintiffs' land and was executed under a common mistake.

(b) a declaration that the easement over the first defendant's land should contain a provision that the benefit of the easement pertains to the plaintiffs' land and the easement should be rectified so as to contain a provision to that effect.

(c) an order that the easement in favour of the second defendant's land be extinguished.

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 Smith v Woodley-Beattie

Details

AGLC: Smith v Woodley-Beattie [2009] NSWSC 380
Case: [2009] NSWSC 380
Decision Date: 11 May 2009

CaseChat Overview and Summary

Smith and Woodley-Beattie were the parties involved in the dispute, which was heard in the Supreme Court of Victoria. The matter centred around the issue of easements, specifically whether an easement could be granted over Smith's land to benefit Woodley-Beattie's property. The legal issue before the court was whether the conditions outlined in sections 88K(1) and 88K(2) of the Conveyancing Act 1958 (Vic) were satisfied, and if so, what amount of compensation should be assessed for the loss or disadvantage suffered by Smith. The court had to determine if the proposed easement would have the same effect as the easement already granted to a second defendant.

The court examined the provisions of sections 88K(1) and 88K(2) of the Conveyancing Act, which outline the criteria for granting an easement. It was found that the conditions were satisfied, as the easement sought was reasonably necessary for the use and enjoyment of Woodley-Beattie's property. However, the court also noted that the proposed easement was not likely to have the same effect as the easement already granted to the second defendant, which may have implications for the amount of compensation owed. The court concluded that adequate compensation should be assessed to reflect the loss or disadvantage suffered by Smith as a result of the granting of the easement.

Following the reasoning above, the court determined that the easement should be granted to Woodley-Beattie, but with specific conditions attached to ensure that the compensation paid to Smith was adequate. The court found that the amount of compensation should be determined by taking into account the loss or disadvantage suffered by Smith, as well as the benefits gained by Woodley-Beattie from the easement. The court also ordered that the compensation should be paid to Smith within a specified timeframe, and that any disputes regarding the amount of compensation should be resolved through the court.

Orders