George Laris v Chun Hung Lin [2015] NSWSC 473

George Laris v Chun Hung Lin [2015] NSWSC 473

The plaintiff's claim was dismissed because the Official Trustee in Bankruptcy had indicated preparedness to discontinue it, but the cross-claim for extinguishment of easements could not be finally determined because the easement documents and deposited plans were incomplete or inconsistently presented, the Court was not confident it had complete documentation for the 1997 and 2010 easements, the Trustee should be informed and given an opportunity to be heard about any valuable access rights affecting Lot 1 in DP 743076, and the trespass damages claim lacked clear particulars or calculations.

Jurisdiction
Australia
Judgment Date
24 April 2015
Procedural Posture
Equity Division Proceedings Concerning Easements, Including a Cross Summons for Extinguishment of Easements Under Conveyancing Act 1919, S 89 / Ex Tempore Judgment; Plaintiff's Claim Dismissed and Cross Claim Adjourned Part Heard
Outcome
Plaintiff's claim dismissed; cross-claim adjourned part heard to 25 June 2015; costs reserved.
Legal Topics
['easements' 'extinguishment of Easements' 'rights of Carriageway' 'trespass' 'official Trustee in Bankruptcy' 'evidence of Registered Dealings and Deposited Plans']
['property Law' 'equity' 'bankruptcy'] ['easements' 'extinguishment of Easements' 'rights of Carriageway' 'trespass' 'official Trustee in Bankruptcy' 'evidence of Registered Dealings and Deposited Plans']

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Procedural Posture

Equity Division Proceedings Concerning Easements, Including a Cross Summons for Extinguishment of Easements Under Conveyancing Act 1919, S 89 / Ex Tempore Judgment; Plaintiff's Claim Dismissed and Cross Claim Adjourned Part Heard

Legal Issues

  1. 1 ["Whether the plaintiff's claim should be dismissed in light of his bankruptcy and the Official Trustee's indicated preparedness to discontinue it" 'Whether the Court should presently extinguish the 1997 and 2010 easements over Lot 7 in DP 14354 under Conveyancing Act 1919, s 89' 'Whether the evidence sufficiently established the complete easement documentation and deposited plans relevant to the cross-claim' 'Whether the Official Trustee in Bankruptcy should be informed and heard before orders affecting possible rights appurtenant to Lot 1 in DP 743076 are made' 'Whether the cross-claimant had provided sufficient particulars or calculations for a trespass damages claim']

Ratio Decidendi

The plaintiff's claim was dismissed because the Official Trustee in Bankruptcy had indicated preparedness to discontinue it, but the cross-claim for extinguishment of easements could not be finally determined because the easement documents and deposited plans were incomplete or inconsistently presented, the Court was not confident it had complete documentation for the 1997 and 2010 easements, the Trustee should be informed and given an opportunity to be heard about any valuable access rights affecting Lot 1 in DP 743076, and the trespass damages claim lacked clear particulars or calculations.

Court Disposition

Plaintiff's claim dismissed; cross-claim adjourned part heard to 25 June 2015; costs reserved.

Orders

  • ["Dismiss the plaintiff's claim against the defendant." 'Reserve the question of costs as between the plaintiff and the defendant.' 'Direct the solicitor for the cross-claimant to serve a copy of these reasons on the Trustee in Bankruptcy by Tuesday 5 May 2015.' 'Adjourn these proceedings part heard to 25 June...