The Owners – Strata Plan 85044 v Murrell; Murrell v The Owners – Strata Plan 85044 (No 2) [2020] NSWSC 1542

The Owners – Strata Plan 85044 v Murrell; Murrell v The Owners – Strata Plan 85044 (No 2) [2020] NSWSC 1542

The Murrells had sufficient opportunity to address all matters at hearing, including the s 42 issue; their application to set aside judgment is rejected as no misapprehension of law or denial of procedural fairness occurred. The Court found no basis for an implied easement of necessity enforceable against the Owners Corporation under s 42 of the Real Property Act.

Jurisdiction
Australia
Judgment Date
03 November 2020
Procedural Posture
Notice of Motion to Set Aside Judgment / Post Judgment Application
Outcome
Application dismissed
Legal Topics
['trespass' 'implied Easements' 'indefeasibility of Title' 'procedural Fairness' 'setting Aside Judgments']
['equity' 'real Property'] ['trespass' 'implied Easements' 'indefeasibility of Title' 'procedural Fairness' 'setting Aside Judgments']

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Procedural Posture

Notice of Motion to Set Aside Judgment / Post Judgment Application

Legal Issues

  1. 1 ['Whether the judgment for trespass should be set aside under UCPR r 36.16(3A)' 'Whether procedural fairness was denied regarding the s 42 Real Property Act issue' 'Whether an implied easement of necessity arose and is enforceable against successors in title' 'Whether matters relevant to indefeasibility and easement creation were overlooked']

Ratio Decidendi

The Murrells had sufficient opportunity to address all matters at hearing, including the s 42 issue; their application to set aside judgment is rejected as no misapprehension of law or denial of procedural fairness occurred. The Court found no basis for an implied easement of necessity enforceable against the Owners Corporation under s 42 of the Real Property Act.

Court Disposition

Application dismissed

Orders

  • ['Prayers 2, 3 and 4 of the notice of motion filed on 13 October 2020 by the plaintiffs in proceeding 2019/229582 are dismissed.' "The plaintiffs in proceeding 2019/229582 are to pay the respondent's costs of the motion." 'Extend the 14 day time period in each of Orders 8 and 11 made on 1 October 2020 to 14 days...