Lolakis & Anor v Konitsas [2002] NSWSC 889

Lolakis & Anor v Konitsas [2002] NSWSC 889

The easement is valid and enforceable, does not confer exclusive possession, has not been abandoned, is not obsolete, does not impede reasonable user without practical benefit, and extinguishment would substantially injure the plaintiffs; thus, the easement is maintained and the cross-claim for extinguishment is dismissed.

Jurisdiction
Australia
Judgment Date
04 October 2002
Procedural Posture
Neighbour Dispute Over Easement / Final Judgment
Outcome
Easement held valid; cross-claim dismissed.
Legal Topics
['easement Validity' 'easement Extinguishment' 'right of Carriageway' 'abandonment' 'modification of Easements']
['real Property' 'equity'] ['easement Validity' 'easement Extinguishment' 'right of Carriageway' 'abandonment' 'modification of Easements']

Case Brief

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Procedural Posture

Neighbour Dispute Over Easement / Final Judgment

Legal Issues

  1. 1 ['Whether the easement in question is invalid because it confers exclusive possession' 'Whether the easement should be extinguished as obsolete, abandoned, or impeding reasonable user' 'Whether failure to erect a fence impacts the validity or abandonment of the easement' 'Whether extinguishment will substantially injure persons entitled to the easement']

Ratio Decidendi

The easement is valid and enforceable, does not confer exclusive possession, has not been abandoned, is not obsolete, does not impede reasonable user without practical benefit, and extinguishment would substantially injure the plaintiffs; thus, the easement is maintained and the cross-claim for extinguishment is dismissed.

Court Disposition

Easement held valid; cross-claim dismissed.

Orders

  • ["Declare plaintiffs entitled to benefit of right of carriageway over defendant's land created by Memorandum of Transfer No K445071." 'Order defendant restrained from obstructing use of right of carriageway and erection of the specified fence.' 'Cross-claim dismissed.' "Defendant to pay plaintiffs' costs including...