Flockhart v Parramatta City Council [2010] NSWSC 1380

Flockhart v Parramatta City Council [2010] NSWSC 1380

The easement serves no benefit to the council's land as the intended beneficiary, since the land it was meant to benefit is lower than the serviced land, rendering the easement purposeless. The golf club's benefit is unconnected to the council's land and the club is not a person interested under s 89; therefore, it is not a necessary or proper party. The order for extinguishment of the easement is appropriate given the circumstances and the council's submitting appearance.

Parties
Plaintiff: Alan Peter Flockhart; Defendant: Parramatta City Council
Jurisdiction
Australia
Judgment Date
23 November 2010
Procedural Posture
Civil / Ex Tempore Judgment
Outcome
Extinguishment of easement ordered; motion by Oatlands Golf Club Pty Ltd dismissed with costs; stay of extinguishment order for 21 days; liberty to apply on costs.
Legal Topics
Easements, Extinguishment of Easements, Joinder of Parties
Property Law Civil Procedure Easements Extinguishment of Easements Joinder of Parties

Case Brief

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Parties

Alan Peter Flockhart

Plaintiff

Parramatta City Council

Defendant

Procedural Posture

Civil / Ex Tempore Judgment

Legal Issues

  1. 1 Whether the easement for drainage should be extinguished under s 89 of the Conveyancing Act 1919
  2. 2 Whether Oatlands Golf Club Pty Ltd should be joined as a party to resist the extinguishment of the easement

Ratio Decidendi

The easement serves no benefit to the council's land as the intended beneficiary, since the land it was meant to benefit is lower than the serviced land, rendering the easement purposeless. The golf club's benefit is unconnected to the council's land and the club is not a person interested under s 89; therefore, it is not a necessary or proper party. The order for extinguishment of the easement is appropriate given the circumstances and the council's submitting appearance.

Court Disposition

Extinguishment of easement ordered; motion by Oatlands Golf Club Pty Ltd dismissed with costs; stay of extinguishment order for 21 days; liberty to apply on costs.

Orders

  • Motion filed by Oatlands Golf Club Pty Ltd dismissed with costs.
  • Order pursuant to s 89 of the Conveyancing Act 1919 extinguishing the easement for drainage benefiting the defendant.