Shi v ABI-K Pty Ltd [2014] NSWCA 293

Shi v ABI-K Pty Ltd [2014] NSWCA 293

The appeal was allowed in part. The primary judge did not commit procedural unfairness; the appellant had sufficient opportunity to understand and respond to the case. The easement was reasonably necessary for the development; however, the width should be reduced to 900mm and limited to the soil/sub-soil, not extending above ground level, to minimise the burden. The court varied the form of the easement and set aside the costs order against the appellant, instead requiring the applicant/developer to pay the appellant's costs in the trial as a litigant in person.

Jurisdiction
Australia
Judgment Date
28 August 2014
Procedural Posture
Appeal / Decision on Appeal
Outcome
Appeal allowed in part. Orders of trial court set aside and varied. Easement to be imposed at 900mm width, confined to soil/sub-soil; compensation of $21,500 to be paid; applicant to pay respondent's costs of trial as a litigant in person; registrarial execution if defendant defaults; no order as to costs on appeal.
Legal Topics
['easements' 'court Power to Impose Easements' 'compensation for Easement' 'procedural Fairness' 'costs Orders']
['real Property' 'practice and Procedure'] ['easements' 'court Power to Impose Easements' 'compensation for Easement' 'procedural Fairness' 'costs Orders']

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

Appeal / Decision on Appeal

Legal Issues

  1. 1 ['Whether procedural fairness was denied to the appellant at trial' 'Whether the requirements of s 88K of the Conveyancing Act 1919 (NSW) for imposition of an easement were satisfied, including reasonable necessity, compensation, and public interest' 'Whether the trial judge erred in costs orders regarding the applicant']

Ratio Decidendi

The appeal was allowed in part. The primary judge did not commit procedural unfairness; the appellant had sufficient opportunity to understand and respond to the case. The easement was reasonably necessary for the development; however, the width should be reduced to 900mm and limited to the soil/sub-soil, not extending above ground level, to minimise the burden. The court varied the form of the easement and set aside the costs order against the appellant, instead requiring the applicant/developer to pay the appellant's costs in the trial as a litigant in person.

Court Disposition

Appeal allowed in part. Orders of trial court set aside and varied. Easement to be imposed at 900mm width, confined to soil/sub-soil; compensation of $21,500 to be paid; applicant to pay respondent's costs of trial as a litigant in person; registrarial execution if defendant defaults; no order as to costs on appeal.

Orders

  • ['Appeal allowed in part; set aside orders made in the Equity Division on 5 May 2014 as varied on 8 May 2014.' 'Impose an easement to drain water 900mm wide over Lot 4 in Deposited Plan 39083 (15 Blenheim Road, Carlingford) for the benefit of Lot 2A in Deposited Plan 161330 (50 Felton Road, Carlingford), as per...