Studholme v Rawson

The appeal in *Studholme v Rawson* concerned an application for an easement under section 88K of the *Conveyancing Act 1919* (NSW). The plaintiffs sought an easement for a right of carriage way over land owned by the defendant. The primary judge in the Equity Division granted the easement and made orders regarding compensation and costs. The defendant appealed these orders.

The Court of Appeal was required to determine several issues, including whether the primary judge had demonstrated bias by expressing views on the evidence in chambers, and whether the primary judge had erred in assessing compensation for the servient tenement owner and in determining the terms and conditions of the easement. The court also considered whether the primary judge had correctly determined the reasonableness of the proposed easement and whether the costs orders made were appropriate, particularly in light of the defendant's objection to the easement. Finally, the court addressed the propriety of the primary judge holding informal directions hearings in chambers, which were not open to the public or recorded.

The Court of Appeal found that the primary judge's remarks, while revealing a strong view based on the filed evidence, did not amount to prejudgment or bias. The court reasoned that the judge's reliance on the overriding purpose of the *Civil Procedure Act 2005* (NSW) and the fact that the statements were made in chambers to counsel, rather than in open court, did not vitiate the proceedings. However, the court held that the primary judge had erred in determining the terms and conditions of the easement before assessing compensation, and that the reasonableness of the easement could not be properly determined without first establishing these terms. The court also criticised the practice of holding private, unrecorded directions hearings, deeming it contrary to the principle of open justice.

Consequently, the Court of Appeal allowed the appeal, setting aside the primary judge's orders. The matter was remitted to the Equity Division for the determination of the appropriate terms and conditions of the easement, after which compensation and costs would be reassessed. The court made specific orders regarding the costs of the proceedings in both the Equity Division and the Court of Appeal, and granted the respondents a certificate under the *Suitors’ Fund Act 1951* (NSW).