Gordon v Shaheen [2005] NSWSC 1328

Gordon v Shaheen [2005] NSWSC 1328

The plaintiffs have demonstrated that the drainage easement over the defendants' land is reasonably necessary for the effective use and timely development of their properties, all reasonable attempts to obtain it by consent have failed, and adequate compensation can be paid to the defendants; thus, the Court exercises its discretion to impose the easement under s 88K of the Conveyancing Act 1919, subject to specification of site and terms.

Jurisdiction
Australia
Judgment Date
15 December 2005
Procedural Posture
Application / Judgment
Outcome
Easement imposed pending specification of site and terms, compensation set at $16,000.
Legal Topics
['easements' 'statutory Easements' 'imposition of Easement' 'compensation for Easement']
['real Property' 'equity'] ['easements' 'statutory Easements' 'imposition of Easement' 'compensation for Easement']

Case Brief

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Procedural Posture

Application / Judgment

Legal Issues

  1. 1 ["Is the proposed easement reasonably necessary for the effective use or development of the plaintiffs' land under s 88K(1) of the Conveyancing Act 1919?" "Will the use of the plaintiffs' land as proposed be not inconsistent with the public interest under s 88K(2)(a)?" 'Can the owners of the servient land be adequately compensated for any loss or disadvantage under s 88K(2)(b)?' 'Have all reasonable attempts been made by the plaintiffs to obtain the easement or an easement having the same effect but been unsuccessful under s 88K(2)(c)?' 'Should the Court exercise its discretion to impose an easement under s 88K(1)?' 'What compensation should be imposed under s 88K(4)?']

Ratio Decidendi

The plaintiffs have demonstrated that the drainage easement over the defendants' land is reasonably necessary for the effective use and timely development of their properties, all reasonable attempts to obtain it by consent have failed, and adequate compensation can be paid to the defendants; thus, the Court exercises its discretion to impose the easement under s 88K of the Conveyancing Act 1919, subject to specification of site and terms.

Court Disposition

Easement imposed pending specification of site and terms, compensation set at $16,000.

Orders

  • ['Matter stood over to 30 January 2006 for bringing in documents to specify site and terms for order under s 88K(3) of the Conveyancing Act 1919.' "Upon finalisation, an easement will be imposed over the defendants' land as indicated in the plaintiffs' evidence, compensation of $16,000 to be embodied in the order."]