Ross Bilton & Ors v Georgia Ligdas [2016] NSWSC 1262

Ross Bilton & Ors v Georgia Ligdas [2016] NSWSC 1262

No express easement was created by the 1937 conveyance in favour of the plaintiff properties as the instrument did not satisfy the statutory requirements. Prescriptive easements were established for No. 39 and No. 41 Phillip Street due to continuous, open, and acquiesced-in use for over twenty years prior to 2000. No prescriptive easement existed for No. 35, but an easement was granted under s.88K of the Conveyancing Act 1919 (NSW) in favour of No. 35, as it was reasonably necessary for the effective use of the property, would not unduly burden the respondent given pre-existing easements in favour of neighbouring properties, and compensation was available.

Jurisdiction
Australia
Judgment Date
29 July 2016
Procedural Posture
Principal Judgment / Final Decision After Hearing
Outcome
Prescriptive easements established for No. 39 and No. 41 Phillip Street; no prescriptive or express easement for No. 35; statutory easement under s.88K granted for No. 35, subject to compensation and determination of form.
Legal Topics
['easements' 'express Easements' 'prescriptive Easements' 'statutory Easements']
['real Property' 'equity'] ['easements' 'express Easements' 'prescriptive Easements' 'statutory Easements']

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Procedural Posture

Principal Judgment / Final Decision After Hearing

Legal Issues

  1. 1 ['Whether an express easement exists as a matter of construction of the conveyancing grant.' 'Whether a prescriptive easement exists as a result of continued use by plaintiffs and their predecessors in title.' 'Whether a right to a statutory easement exists under s.88K Conveyancing Act 1919 (NSW), including reasonable necessity, public interest, compensation, and reasonable attempts to obtain easement.']

Ratio Decidendi

No express easement was created by the 1937 conveyance in favour of the plaintiff properties as the instrument did not satisfy the statutory requirements. Prescriptive easements were established for No. 39 and No. 41 Phillip Street due to continuous, open, and acquiesced-in use for over twenty years prior to 2000. No prescriptive easement existed for No. 35, but an easement was granted under s.88K of the Conveyancing Act 1919 (NSW) in favour of No. 35, as it was reasonably necessary for the effective use of the property, would not unduly burden the respondent given pre-existing easements in favour of neighbouring properties, and compensation was available.

Court Disposition

Prescriptive easements established for No. 39 and No. 41 Phillip Street; no prescriptive or express easement for No. 35; statutory easement under s.88K granted for No. 35, subject to compensation and determination of form.

Orders

  • ['Easements established by prescription in favour of No. 39 and 41 Phillip Street.' 'Statutory easement under s.88K Conveyancing Act 1919 (NSW) granted for No. 35 Phillip Street, conditional upon payment of A$10,000 compensation to 1st Defendant.' 'Directions to be made regarding form of easement after further...