Markos v O R Autor [2007] NSWSC 810

Markos v O R Autor [2007] NSWSC 810

The right of way does not authorise the use of the passageway for fire egress in compliance with the Building Code of Australia (BCA), as proposed in the defendant's approved plans. Such use would require the servient owners to relinquish certain rights (parking, installation of gates) and create a certainty of egress inconsistent with the scope of the easement as originally granted. Therefore, a declaration and injunction restraining the proposed use are appropriate. The right of way is not obsolete and should not be extinguished or modified under s 89, nor can the court modify the easement to authorise fire egress for the benefit of the dominant owner.

Parties
Plaintiff: Con Markos; Plaintiff: Katina Markos; Plaintiff: George Markos; Defendant: O R Autor Pty Ltd; Defendant: Anna Countouris
Jurisdiction
Australia
Judgment Date
25 July 2007
Procedural Posture
Equity Real Property Dispute / Final Judgment After Hearing
Outcome
Declaration and injunction granted. Application for extinguishment or modification of right of way dismissed.
Legal Topics
Easements, Right of Way, Modification/extinguishment of Easements, Development Consents, Building Code Compliance
Real Property Equity Easements Right of Way Modification/extinguishment of Easements Development Consents Building Code Compliance

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 3 Authorities cited 45 Party arguments 2
Sign in to unlock

Parties

Con Markos

Plaintiff

Katina Markos

Plaintiff

George Markos

Plaintiff

O R Autor Pty Ltd

Defendant

Anna Countouris

Defendant

Procedural Posture

Equity Real Property Dispute / Final Judgment After Hearing

Legal Issues

  1. 1 Does the right of way authorise use for fire egress in compliance with the Building Code of Australia (BCA)?
  2. 2 Should a declaration and injunction restraining use for fire egress be granted?
  3. 3 Should the right of way be extinguished or modified under s 89 of the Conveyancing Act 1919 (NSW)?

Ratio Decidendi

The right of way does not authorise the use of the passageway for fire egress in compliance with the Building Code of Australia (BCA), as proposed in the defendant's approved plans. Such use would require the servient owners to relinquish certain rights (parking, installation of gates) and create a certainty of egress inconsistent with the scope of the easement as originally granted. Therefore, a declaration and injunction restraining the proposed use are appropriate. The right of way is not obsolete and should not be extinguished or modified under s 89, nor can the court modify the easement to authorise fire egress for the benefit of the dominant owner.

Court Disposition

Declaration and injunction granted. Application for extinguishment or modification of right of way dismissed.

Orders

  • Declaration that right of way does not authorise use for fire egress complying with BCA as proposed.
  • Final injunction restraining use of the site of the right of way for fire egress passage from proposed building.