Laris v Lin (No. 2) [2016] NSWSC 560

Laris v Lin (No. 2) [2016] NSWSC 560

None of the grounds for extinguishing the 1997 and 2010 easements under s 89(1) of the Conveyancing Act 1919 were satisfied. The easements are not obsolete, there is a prospect of future practical benefit, and their extinguishment would risk substantial injury to the dominant tenement. However, the rights conferred do not include parking, and the dominant tenement owner is not entitled to park on the area covered by the easements except as an incident of passing and repassing.

Parties
Plaintiff/cross Defendant: George Laris; Defendant/cross Claimant: Chun Hung Lin
Jurisdiction
Australia
Judgment Date
09 May 2016
Procedural Posture
Principal Judgment / Hearing and Judgment on Cross Claim, With Trespass and Costs Issues Reserved
Outcome
Cross-claim for extinguishment or variation of the easements dismissed; declaration made as to absence of any right to park under the easements; other relief and costs reserved for further hearing.
Legal Topics
Easements, Extinguishment of Easements, Conveyancing Act 1919 S 89, Right of Carriageway, Parking Rights, Bankruptcy and Civil Procedure
Property Law Equity Easements Extinguishment of Easements Conveyancing Act 1919 S 89 Right of Carriageway Parking Rights Bankruptcy and Civil Procedure

Case Brief

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Parties

George Laris

Plaintiff/cross Defendant

Chun Hung Lin

Defendant/cross Claimant

Procedural Posture

Principal Judgment / Hearing and Judgment on Cross Claim, With Trespass and Costs Issues Reserved

Legal Issues

  1. 1 Whether the 1997 and 2010 easements (rights of carriageway) over Lot 7 should be extinguished or varied under Conveyancing Act 1919, s 89
  2. 2 Whether the dominant tenement (Laris land) owner is entitled to park vehicles on the area of the easements
  3. 3 Whether extinguishment would substantially injure the persons entitled to the easements

Ratio Decidendi

None of the grounds for extinguishing the 1997 and 2010 easements under s 89(1) of the Conveyancing Act 1919 were satisfied. The easements are not obsolete, there is a prospect of future practical benefit, and their extinguishment would risk substantial injury to the dominant tenement. However, the rights conferred do not include parking, and the dominant tenement owner is not entitled to park on the area covered by the easements except as an incident of passing and repassing.

Court Disposition

Cross-claim for extinguishment or variation of the easements dismissed; declaration made as to absence of any right to park under the easements; other relief and costs reserved for further hearing.

Orders

  • Prayers for relief 1, 2 and 6 of the Cross-Claim dismissed.
  • Declaration that the registered proprietor of Lot 1 in DP743076 is not permitted to park vehicles on the area of the 1997 easement or the 2010 easement.