Sheppard v Smith [2021] NSWSC 1207

Sheppard v Smith [2021] NSWSC 1207

The plaintiffs failed to establish abandonment, obsolescence, or absence of substantial injury as required by s 89(1) of the Conveyancing Act 1919 (NSW). The evidence showed the easement was not abandoned, retains practical benefit and its extinguishment would substantially injure the defendants. Exercise of discretion also weighed against extinguishment, particularly given the plaintiffs' knowledge of the easement and works undertaken while the right of way existed. The application to extinguish the easement was dismissed and the interlocutory injunction discharged.

Jurisdiction
Australia
Judgment Date
23 September 2021
Procedural Posture
Application to Extinguish Easement (easement Extinguishment Proceedings) / Final Judgment at First Instance
Outcome
Plaintiffs' claim dismissed; interlocutory injunction discharged; plaintiffs ordered to pay defendants' costs.
Legal Topics
['easements' 'right of Way Extinguishment' 'abandonment of Easement' 'obsolescence of Easement' "court's Discretion Regarding Easements" 'conveyancing Act 1919 (nsw) S 89' 'torrens Title' 'old System Title']
['property Law' 'equity' 'real Property'] ['easements' 'right of Way Extinguishment' 'abandonment of Easement' 'obsolescence of Easement' "court's Discretion Regarding Easements" 'conveyancing Act 1919 (nsw) S 89' 'torrens Title' 'old System Title']

Case Brief

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Procedural Posture

Application to Extinguish Easement (easement Extinguishment Proceedings) / Final Judgment at First Instance

Legal Issues

  1. 1 ["Whether the right of way is obsolete or unreasonably impedes the plaintiffs' land without practical benefit to the defendants" 'Whether the easement (right of way) has been abandoned' 'Whether extinguishment of the easement would substantially injure the defendants']

Ratio Decidendi

The plaintiffs failed to establish abandonment, obsolescence, or absence of substantial injury as required by s 89(1) of the Conveyancing Act 1919 (NSW). The evidence showed the easement was not abandoned, retains practical benefit and its extinguishment would substantially injure the defendants. Exercise of discretion also weighed against extinguishment, particularly given the plaintiffs' knowledge of the easement and works undertaken while the right of way existed. The application to extinguish the easement was dismissed and the interlocutory injunction discharged.

Court Disposition

Plaintiffs' claim dismissed; interlocutory injunction discharged; plaintiffs ordered to pay defendants' costs.

Orders

  • ["Order that the plaintiffs' claim be dismissed." 'Order that the injunction granted by the Court on 25 May 2020 be discharged.' "Order that the plaintiffs pay the defendants' costs of the proceedings."]