Effeney v Millar Investments Pty Ltd & ors [2011] NSWSC 708

Effeney v Millar Investments Pty Ltd & ors [2011] NSWSC 708

The easement was not intentionally abandoned, and even if there had been 20 years’ non-use, lack of intentional abandonment and some use by council contractors (or obstacles placed by the servient owner) justified declining extinguishment. The easement is not obsolete as it continues to serve a useful purpose for Lot 19, and its extinguishment would cause substantial injury to the Council, at least economically. The court lacked power to order relocation of the easement as a condition. Thus, the application was dismissed as against the Council.

Jurisdiction
Australia
Judgment Date
08 July 2011
Procedural Posture
Application for Extinguishment or Modification of Easement / Final Judgment After Hearing
Outcome
Application for extinguishment or modification of easement benefiting third defendant dismissed; easement in favour of second defendant extinguished.
Legal Topics
['easements' 'modification or Extinguishment of Easements' 'abandonment of Easement' 'obsolescence' 'discretion in Equity' 'statutory Interpretation' 'civil Procedure']
['real Property' 'equity'] ['easements' 'modification or Extinguishment of Easements' 'abandonment of Easement' 'obsolescence' 'discretion in Equity' 'statutory Interpretation' 'civil Procedure']

Case Brief

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Procedural Posture

Application for Extinguishment or Modification of Easement / Final Judgment After Hearing

Legal Issues

  1. 1 ['Whether an easement (right of carriageway) benefiting the third defendant (Council) has been abandoned under s 89(1A) or 89(1)(b) of the Conveyancing Act 1919 (NSW)' 'Whether the easement is obsolete under s 89(1)(a) of the Conveyancing Act 1919 (NSW)' 'Whether substantial injury would be caused to the Council if the easement were extinguished under s 89(1)(c)' 'Whether an order for extinguishment could include relocation of the easement as a condition']

Ratio Decidendi

The easement was not intentionally abandoned, and even if there had been 20 years’ non-use, lack of intentional abandonment and some use by council contractors (or obstacles placed by the servient owner) justified declining extinguishment. The easement is not obsolete as it continues to serve a useful purpose for Lot 19, and its extinguishment would cause substantial injury to the Council, at least economically. The court lacked power to order relocation of the easement as a condition. Thus, the application was dismissed as against the Council.

Court Disposition

Application for extinguishment or modification of easement benefiting third defendant dismissed; easement in favour of second defendant extinguished.

Orders

  • ['The application by the plaintiff for extinguishment of the easement on the title to its land which burdens the land owned by the third defendant is dismissed.' "Pursuant to s 89(1)(a) of the Conveyancing Act 1919 (NSW), the easement on the title of the plaintiff's land insofar as it burdens the land owned by the...