Deering v Attard [2024] NSWSC 1604

Deering v Attard [2024] NSWSC 1604

The plaintiff failed to discharge his onus of establishing that the proposed easement burdening the defendant's land is reasonably necessary for effective use or development of his land within s 88K(1) of the Conveyancing Act 1919 (NSW), as an alternative driveway could be constructed wholly on the plaintiff's land, and imposing the easement would risk interference with the defendant's reasonable use and enjoyment of his property.

Parties
Plaintiff: Jack Bernard Deering; Defendant: Luke Joseph Attard
Jurisdiction
Australia
Judgment Date
13 December 2024
Procedural Posture
Equity / Final Judgment
Outcome
Plaintiff's claim dismissed
Legal Topics
Easements, Section 88 K Applications, Vehicular Access, Reasonable Necessity, Quiet Enjoyment
Land Law Property Law Easements Section 88 K Applications Vehicular Access Reasonable Necessity Quiet Enjoyment

Case Brief

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Parties

Jack Bernard Deering

Plaintiff

Luke Joseph Attard

Defendant

Procedural Posture

Equity / Final Judgment

Legal Issues

  1. 1 Whether the easement burdening the defendant's land is reasonably necessary for the effective use or development of the plaintiff's land within the meaning of s 88K(1) of the Conveyancing Act 1919 (NSW)
  2. 2 Whether all reasonable attempts have been made to obtain the easement or an easement having the same effect as required under s 88K(2)(c)
  3. 3 Whether the defendant and other persons having interest can be adequately compensated for loss/disadvantage under s 88K(2)(b)

Ratio Decidendi

The plaintiff failed to discharge his onus of establishing that the proposed easement burdening the defendant's land is reasonably necessary for effective use or development of his land within s 88K(1) of the Conveyancing Act 1919 (NSW), as an alternative driveway could be constructed wholly on the plaintiff's land, and imposing the easement would risk interference with the defendant's reasonable use and enjoyment of his property.

Court Disposition

Plaintiff's claim dismissed

Orders

  • Order that the plaintiff's claim for relief in prayer 4 of the Amended Summons is dismissed.
  • Order that the interim injunction granted on 9 February 2024, as varied by orders made on 13 and 22 February 2024, is discharged with immediate effect.