Ashoil Pty Ltd v Fassoulas & Ors [2004] NSWSC 554

Ashoil Pty Ltd v Fassoulas & Ors [2004] NSWSC 554

The plaintiff failed to prove abandonment because the paling fence, covered area, failed shoe repair proposal, locked gate, non-use, and later construction of Turner Lane did not establish a firm intention by the defendants' predecessors never to use or transmit the right of way. The easement was not obsolete because its original purpose could still be served and it retained practical benefits to the dominant tenement, including patron access, repair access, and light. The plaintiff also failed to prove that the easement sterilised or materially impeded reasonable use of the servient tenement, as it showed only approval for a development involving construction over the right of way and...

Jurisdiction
Australia
Judgment Date
29 June 2004
Procedural Posture
Summons Seeking Extinguishment of an Easement / Judgment After Hearing in the Equity Division of the Supreme Court of New South Wales
Outcome
Summons dismissed with costs.
Legal Topics
['torrens Title' 'right of Way' 'extinguishment of Easement' 'abandonment of Easement' 'obsolescence of Easement' 'reasonable User of Servient Tenement' 'conveyancing Act 1919, S 89']
['conveyancing' 'property Law' 'easements'] ['torrens Title' 'right of Way' 'extinguishment of Easement' 'abandonment of Easement' 'obsolescence of Easement' 'reasonable User of Servient Tenement' 'conveyancing Act 1919, S 89']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Summons Seeking Extinguishment of an Easement / Judgment After Hearing in the Equity Division of the Supreme Court of New South Wales

Legal Issues

  1. 1 ['Whether predecessors in title to the defendant owners of the dominant tenement had abandoned the easement so that it should be extinguished under Conveyancing Act 1919, s 89(1)(b).' 'Whether the easement should be deemed obsolete under Conveyancing Act 1919, s 89(1)(a) by reason of change in the user of the dominant tenement, change in the character of the neighbourhood, or other circumstances.' "Whether the continued existence of the easement impeded the reasonable user of the plaintiff's servient tenement without securing practical benefit to the defendants."]

Ratio Decidendi

The plaintiff failed to prove abandonment because the paling fence, covered area, failed shoe repair proposal, locked gate, non-use, and later construction of Turner Lane did not establish a firm intention by the defendants' predecessors never to use or transmit the right of way. The easement was not obsolete because its original purpose could still be served and it retained practical benefits to the dominant tenement, including patron access, repair access, and light. The plaintiff also failed to prove that the easement sterilised or materially impeded reasonable use of the servient tenement, as it showed only approval for a development involving construction over the right of way and...

Court Disposition

Summons dismissed with costs.

Orders

  • ['Summons dismissed with costs.']