Sheppard v Smith [2022] NSWCA 167

Sheppard v Smith [2022] NSWCA 167

The appeal was dismissed because the primary judge did not err in finding no intention to abandon the right of way, that it was not obsolete, and that extinguishment would likely cause substantial injury to the dominant tenement owners. Non-use and minor impediments did not establish abandonment in light of active steps to preserve the easement on title, and the easement continued to provide a practical benefit.

Parties
First Appellant: Dean Frederick Sheppard; Second Appellant: Meredith Jane Chapman; First Respondent: Dean Clayton Smith; Second Respondent: Emma Jane Munro
Jurisdiction
Australia
Judgment Date
29 August 2022
Procedural Posture
Appeal / Judgment
Outcome
Appeal dismissed.
Legal Topics
Easements, Extinguishment of Easements, Abandonment of Easements, Obsolescence of Easements, Section 89 Conveyancing Act Applications
Property Law Easements Extinguishment of Easements Abandonment of Easements Obsolescence of Easements Section 89 Conveyancing Act Applications

Case Brief

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Parties

Dean Frederick Sheppard

First Appellant

Meredith Jane Chapman

Second Appellant

Dean Clayton Smith

First Respondent

Emma Jane Munro

Second Respondent

Procedural Posture

Appeal / Judgment

Legal Issues

  1. 1 Whether the right of way easement should be extinguished under s 89(1) of the Conveyancing Act 1919 (NSW) on grounds of abandonment, obsolescence, or lack of substantial injury.

Ratio Decidendi

The appeal was dismissed because the primary judge did not err in finding no intention to abandon the right of way, that it was not obsolete, and that extinguishment would likely cause substantial injury to the dominant tenement owners. Non-use and minor impediments did not establish abandonment in light of active steps to preserve the easement on title, and the easement continued to provide a practical benefit.

Court Disposition

Appeal dismissed.

Orders

  • Appeal dismissed.
  • The Appellants pay the Respondents' costs of the Appeal.