Bona Vista Properties Pty Ltd [2007] NSWSC 1278

Bona Vista Properties Pty Ltd [2007] NSWSC 1278

The easement has become obsolete as its original agricultural purpose is no longer relevant, water has not been drawn for over seven years, and both affected parcels are intended for residential use; therefore, the plaintiff has established a case for extinguishment under s 89 of the Conveyancing Act 1919.

Jurisdiction
Australia
Judgment Date
29 October 2007
Procedural Posture
Application Under S 89 of the Conveyancing Act 1919 / Judgment at First Instance
Outcome
Easement extinguished as obsolete.
Legal Topics
['easements' 'abandonment' 'extinguishment' 'obsolescence' 'procedure on Application to Court']
['real Property' 'equity'] ['easements' 'abandonment' 'extinguishment' 'obsolescence' 'procedure on Application to Court']

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Procedural Posture

Application Under S 89 of the Conveyancing Act 1919 / Judgment at First Instance

Legal Issues

  1. 1 ['Whether the easement over the Bona Vista land has become obsolete under s 89 of the Conveyancing Act 1919 so as to warrant its extinguishment.']

Ratio Decidendi

The easement has become obsolete as its original agricultural purpose is no longer relevant, water has not been drawn for over seven years, and both affected parcels are intended for residential use; therefore, the plaintiff has established a case for extinguishment under s 89 of the Conveyancing Act 1919.

Court Disposition

Easement extinguished as obsolete.

Orders

  • ['Order that the easement and right of way created by deed dated 27 February 1946 being old system register Book 2012 Number 887 be wholly extinguished.' 'Order that Exhibits A and B may be returned.']