Kellogg (Aust.) Pty Ltd v The Owners – Strata Plan 81034 [2024] NSWSC 1502

Kellogg (Aust.) Pty Ltd v The Owners – Strata Plan 81034 [2024] NSWSC 1502

The Drainage Easement was extinguished to the extent it burdens the plaintiff's land because all persons entitled to its benefit consented to its extinguishment as required by s 89(1)(b) of the Conveyancing Act 1919 (NSW).

Parties
Plaintiff: Kellogg (Aust.) Pty Ltd; First Defendant: The Owners – Strata Plan 81034; Second Defendant: The Trust Company Limited; Third Defendant: GTA Industrial Custodian Pty Limited
Jurisdiction
Australia
Judgment Date
26 November 2024
Procedural Posture
Principal Judgment / Final Hearing and Orders
Outcome
Easement extinguished to the extent it burdens the plaintiff's land; no order as to costs.
Legal Topics
Easements, Extinguishment of Easements, Court Order Under Conveyancing Act S 89
Property Law Equity Easements Extinguishment of Easements Court Order Under Conveyancing Act S 89

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Parties

Kellogg (Aust.) Pty Ltd

Plaintiff

The Owners – Strata Plan 81034

First Defendant

The Trust Company Limited

Second Defendant

GTA Industrial Custodian Pty Limited

Third Defendant

Procedural Posture

Principal Judgment / Final Hearing and Orders

Legal Issues

  1. 1 Whether the Drainage Easement should be extinguished insofar as it burdens the plaintiff's land under section 89(1)(b) of the Conveyancing Act 1919 (NSW)

Ratio Decidendi

The Drainage Easement was extinguished to the extent it burdens the plaintiff's land because all persons entitled to its benefit consented to its extinguishment as required by s 89(1)(b) of the Conveyancing Act 1919 (NSW).

Court Disposition

Easement extinguished to the extent it burdens the plaintiff's land; no order as to costs.

Orders

  • Order pursuant to section 89(1) of the Conveyancing Act 1919 (NSW) that the easement for drainage 4.57 metres wide created by registered dealing D134### is extinguished to the extent that it burdens the land described in folio identifier 1/8####9.
  • No order as to costs.