Bernadette Mills v GM Amalgamated Investments (Dulwich Hill) Pty Ltd & Anor [2013] NSWSC 519

Bernadette Mills v GM Amalgamated Investments (Dulwich Hill) Pty Ltd & Anor [2013] NSWSC 519

The easement condition bound the defendants as grantees and owners of the dominant tenement, irrespective of whether the physical work was carried out by their authorised independent contractor. Josa's failure to compact the backfill caused continuing subsidence and settlement of the plaintiff's land, leaving the surface unrestored to its prior condition. Because the defendants continued to enjoy the easement and had taken no steps to remedy the defective work, they were in continuing breach of the easement condition, and the limitation defence did not apply.

Jurisdiction
Australia
Judgment Date
09 May 2013
Procedural Posture
Claim for Damages Concerning an Easement to Drain Water and Alleged Breach of Condition to Restore the Servient Tenement / Principal Judgment After Hearing
Outcome
Verdict for the plaintiff in the sum of $106,323.15, with judgment accordingly; defendants to pay the plaintiff's costs.
Legal Topics
['easement to Drain Water' 's 88 B Conveyancing Act 1919' 'servient Tenement' 'dominant Tenement' 'restoration Condition' 'subsidence' 'defective Backfilling' 'limitation Period']
['real Property' 'easements'] ['easement to Drain Water' 's 88 B Conveyancing Act 1919' 'servient Tenement' 'dominant Tenement' 'restoration Condition' 'subsidence' 'defective Backfilling' 'limitation Period']

Case Brief

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Procedural Posture

Claim for Damages Concerning an Easement to Drain Water and Alleged Breach of Condition to Restore the Servient Tenement / Principal Judgment After Hearing

Legal Issues

  1. 1 ["Whether the backfilling of the trench after replacement of drainage pipes within the easement was defective and caused subsidence and damage to the plaintiff's land" 'Whether the defendants, as owners of the dominant tenement, were liable for breach of the easement condition requiring reasonable precautions and restoration of the surface of the servient tenement' 'Whether the defendants avoided liability because the work was carried out by an independent contractor' 'Whether the proceedings were barred by a statutory six year limitation period']

Ratio Decidendi

The easement condition bound the defendants as grantees and owners of the dominant tenement, irrespective of whether the physical work was carried out by their authorised independent contractor. Josa's failure to compact the backfill caused continuing subsidence and settlement of the plaintiff's land, leaving the surface unrestored to its prior condition. Because the defendants continued to enjoy the easement and had taken no steps to remedy the defective work, they were in continuing breach of the easement condition, and the limitation defence did not apply.

Court Disposition

Verdict for the plaintiff in the sum of $106,323.15, with judgment accordingly; defendants to pay the plaintiff's costs.

Orders

  • ['There be a verdict for the plaintiff in the sum of $106,323.15 and judgment accordingly.' "The defendants' pay the plaintiff's costs of the proceedings."]