Gittany v McDowell [2009] NSWSC 591

Gittany v McDowell [2009] NSWSC 591

The 2004 Agreement incorporated the dog-leg plan and was not varied to the straight-line plan because Ms McDowell never agreed to allow Mr Gittany to drain water over her land using that route. Neither defendant breached the 2004 Agreement as alleged. By the time proceedings were commenced, the parties had acted inconsistently with continued performance and the 2004 Agreement had come to an end by mutual abandonment. Specific performance and damages were therefore unavailable. The s 88K claim also failed because the evidence did not establish that the straight-line easement was reasonably necessary in present circumstances, particularly given the expired development consent and evidence...

Jurisdiction
Australia
Judgment Date
30 June 2009
Procedural Posture
Equity Proceedings Seeking Declarations, Specific Performance and Damages for an Easement Agreement, Alternatively an Order Imposing Easements Under S 88 K of the Conveyancing Act / Principal Judgment After Hearing
Outcome
Further Amended Statement of Claim dismissed with costs.
Legal Topics
['easements to Drain Water' 'specific Performance' 'mutual Abandonment of Contract' 'conveyancing Act S 88 K' 'reasonable Necessity for Easement' 'compulsory Imposition of Easement' 'damages for Breach of Contract']
['property Law' 'equity' 'contract Law'] ['easements to Drain Water' 'specific Performance' 'mutual Abandonment of Contract' 'conveyancing Act S 88 K' 'reasonable Necessity for Easement' 'compulsory Imposition of Easement' 'damages for Breach of Contract']

Case Brief

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Procedural Posture

Equity Proceedings Seeking Declarations, Specific Performance and Damages for an Easement Agreement, Alternatively an Order Imposing Easements Under S 88 K of the Conveyancing Act / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the “final plan” under the 2004 Agreement was the dog-leg plan or the straight-line plan.' 'Whether Ms McDowell or Mr Burke breached the 2004 Agreement, including by failing to involve Mr Gittany in negotiations for the straight-line easement.' 'Whether the 2004 Agreement remained on foot or had come to an end by mutual abandonment or repudiation.' 'Whether Mr Gittany was entitled to specific performance or damages under the 2004 Agreement.' 'Whether an easement should be imposed over the Burke Lot and McDowell Lot under s 88K of the Conveyancing Act.']

Ratio Decidendi

The 2004 Agreement incorporated the dog-leg plan and was not varied to the straight-line plan because Ms McDowell never agreed to allow Mr Gittany to drain water over her land using that route. Neither defendant breached the 2004 Agreement as alleged. By the time proceedings were commenced, the parties had acted inconsistently with continued performance and the 2004 Agreement had come to an end by mutual abandonment. Specific performance and damages were therefore unavailable. The s 88K claim also failed because the evidence did not establish that the straight-line easement was reasonably necessary in present circumstances, particularly given the expired development consent and evidence...

Court Disposition

Further Amended Statement of Claim dismissed with costs.

Orders

  • ['The Further Amended Statement of Claim is dismissed with costs.']