Trewin v Felton [2007] NSWSC 1370

Trewin v Felton [2007] NSWSC 1370

The defendant failed to discharge the onus of proving that a reduction of the aperture to 3.4 metres would not unreasonably obstruct the plaintiffs’ right of way; thus, the dimension of 3.6 metres is maintained. Costs considerations were deemed at most minor relative to the principal question.

Jurisdiction
Australia
Judgment Date
26 October 2007
Procedural Posture
Notice of Motion / Interlocutory Application (extension of Time and Variation of Order)
Outcome
Time for compliance with order extended; Notice of Motion otherwise dismissed; no order as to costs.
Legal Topics
['easements' 'obstruction of Easement' 'gateposts' 'width of Aperture']
['real Property'] ['easements' 'obstruction of Easement' 'gateposts' 'width of Aperture']

Case Brief

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Procedural Posture

Notice of Motion / Interlocutory Application (extension of Time and Variation of Order)

Legal Issues

  1. 1 ['Whether the aperture between gateposts should be decreased from 3.6 metres to 3.4 metres as sought by the defendant' 'Whether an extension of time for compliance with the order should be granted']

Ratio Decidendi

The defendant failed to discharge the onus of proving that a reduction of the aperture to 3.4 metres would not unreasonably obstruct the plaintiffs’ right of way; thus, the dimension of 3.6 metres is maintained. Costs considerations were deemed at most minor relative to the principal question.

Court Disposition

Time for compliance with order extended; Notice of Motion otherwise dismissed; no order as to costs.

Orders

  • ['Time for compliance with the order as per paragraph 8 of the short minutes of order of 27 August 2007 as amended is extended to and including 2 November 2007.' 'Notice of Motion filed this day is otherwise dismissed.' 'No order as to costs; each party to bear its own costs of the motion.']