Stephenson v Dwyer

Stephenson and Dwyer were neighbours involved in a dispute concerning the extinguishment of an easement. The matter came before the New South Wales Court of Appeal.

The Court of Appeal was required to determine whether documents signed by the neighbours, which contained terms for the extinguishment of an easement and were expressed as signifying "in principle approval," constituted a binding agreement. If a binding agreement was found, the Court also had to consider whether an order under section 89 of the *Conveyancing Act 1919* (NSW) for the extinguishment of the easement should be made. Further issues included whether the agreement of, or joinder as a party to the proceedings by, a mortgagee of the dominant tenement was necessary for such an order, and whether the party agreeing to the extinguishment was required to receive the consideration for that agreement.

The Court reasoned that the documents, despite the "in principle approval" wording, evinced an intention to be bound by the terms agreed upon for the extinguishment of the easement. The Court found that the requirements of section 89 of the *Conveyancing Act 1919* were met, and that the agreement of a mortgagee was not a prerequisite for making an order under that section. Furthermore, the Court held that it was not necessary for the party agreeing to the extinguishment to have received the consideration for that agreement at the time the order was sought.

The appeal was dismissed with costs.