Loclot Pty Ltd v Pullen and Others [2003] NSWSC 67

Loclot Pty Ltd v Pullen and Others [2003] NSWSC 67

The statutory power under s 89(1)(c) of the Conveyancing Act 1919 includes power to modify an easement but does not permit the court to impose conditions (such as height restrictions or compensation) that are not specifically authorised by statute or consented to by the parties. Modification of the right of carriage way as requested is allowed in principle, but issues relating to temporary access and conditions on modification require further consideration or consent.

Jurisdiction
Australia
Judgment Date
28 February 2003
Procedural Posture
Equity Proceedings / Application for Modification of Easement, Interim Decision
Outcome
Matter stood over for further consideration. No final order made at this stage.
Legal Topics
['easements' 'modification or Extinguishment of Easements' 'injunctions' 'right of Carriage Way' 'court Powers Under Conveyancing Act 1919']
['property Law' 'equity' 'civil Procedure'] ['easements' 'modification or Extinguishment of Easements' 'injunctions' 'right of Carriage Way' 'court Powers Under Conveyancing Act 1919']

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Procedural Posture

Equity Proceedings / Application for Modification of Easement, Interim Decision

Legal Issues

  1. 1 ['Whether the court should modify a right of carriage way under Conveyancing Act 1919 s 89(1)(c)' 'Whether the court can impose conditions (e.g., height restrictions) on modification of an easement' "Whether temporary injunction may issue to restrain dominant tenement's use of carriage way during construction" 'Whether court can order provision for compensation in these circumstances']

Ratio Decidendi

The statutory power under s 89(1)(c) of the Conveyancing Act 1919 includes power to modify an easement but does not permit the court to impose conditions (such as height restrictions or compensation) that are not specifically authorised by statute or consented to by the parties. Modification of the right of carriage way as requested is allowed in principle, but issues relating to temporary access and conditions on modification require further consideration or consent.

Court Disposition

Matter stood over for further consideration. No final order made at this stage.

Orders

  • ['No orders made on the further amended summons.' 'Matter stood over to enable parties to consider positions and for plaintiff to seek leave to further amend summons if desired.']