Gordon v Lever (No 2) [2019] NSWCA 275

Gordon v Lever (No 2) [2019] NSWCA 275

The restriction by the primary judge limiting use of the easement to when the river was impassable (above 300mm) was not reasonably necessary and created practical and legal uncertainty; the easement was reasonably necessary at all times, given legal prohibitions on alternate Crown land routes and lack of certainty/practicality in restricted easement usage; an unrestricted easement (subject to defined vehicle and notice provisions) should be provided.

Jurisdiction
Australia
Judgment Date
13 November 2019
Procedural Posture
Appeal / Court of Appeal Judgment
Outcome
Appeal allowed in part; orders of primary judge varied.
Legal Topics
['easements' 'conveyancing Act 1919 S 88 K' 'reasonable Necessity' 'certainty of Easement Terms' 'crown Land Access']
['real Property'] ['easements' 'conveyancing Act 1919 S 88 K' 'reasonable Necessity' 'certainty of Easement Terms' 'crown Land Access']

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Procedural Posture

Appeal / Court of Appeal Judgment

Legal Issues

  1. 1 ["Whether the easement should be restricted as to periods of use or be available at all times as 'reasonably necessary' under s 88K of the Conveyancing Act 1919 (NSW)" 'Whether restrictions and terms imposed by the primary judge are practically or legally workable and sufficiently certain']

Ratio Decidendi

The restriction by the primary judge limiting use of the easement to when the river was impassable (above 300mm) was not reasonably necessary and created practical and legal uncertainty; the easement was reasonably necessary at all times, given legal prohibitions on alternate Crown land routes and lack of certainty/practicality in restricted easement usage; an unrestricted easement (subject to defined vehicle and notice provisions) should be provided.

Court Disposition

Appeal allowed in part; orders of primary judge varied.

Orders

  • ['Appeal allowed in part.' "Order 1 made on 18 December 2018 varied by replacing 'Annexure B to those orders' with 'Annexure 1 to the reasons of the Court of Appeal delivered on 13 November 2019'." "Respondents to pay appellants' costs of the appeal."]