Rosedale Farm (NSW) Pty Limited [2010] NSWSC 1321

Rosedale Farm (NSW) Pty Limited [2010] NSWSC 1321

Extinguishment of the easement is justified under s 89(1)(a) as the easement has become obsolete due to the construction of George Bass Drive and changed character of the neighbourhood; under s 89(1)(b) due to clear abandonment by the dominant owners after a long period of non-use and acquiescence; and under s 89(1)(c) as no substantial injury will result to beneficiaries. The application fulfilled all notification requirements and encountered no opposition.

Jurisdiction
Australia
Judgment Date
22 November 2010
Procedural Posture
Application to Extinguish Easement / Final Judgment
Outcome
Application granted; orders made extinguishing the relevant easements.
Legal Topics
['torrens Title' 'easement Extinguishment' 'statutory Modification/extinguishment of Easements' 'conveyancing Act 1919 S89']
['real Property'] ['torrens Title' 'easement Extinguishment' 'statutory Modification/extinguishment of Easements' 'conveyancing Act 1919 S89']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Application to Extinguish Easement / Final Judgment

Legal Issues

  1. 1 ['Whether the easement created in 1929 over Lots 1 and 12 should be extinguished under Conveyancing Act 1919, s89(1) due to changed circumstances, abandonment, and lack of substantial injury to beneficiaries.']

Ratio Decidendi

Extinguishment of the easement is justified under s 89(1)(a) as the easement has become obsolete due to the construction of George Bass Drive and changed character of the neighbourhood; under s 89(1)(b) due to clear abandonment by the dominant owners after a long period of non-use and acquiescence; and under s 89(1)(c) as no substantial injury will result to beneficiaries. The application fulfilled all notification requirements and encountered no opposition.

Court Disposition

Application granted; orders made extinguishing the relevant easements.

Orders

  • ['Rights of Way 10.06m wide affecting parts of Lot 1 in Deposited Plan 403372 and Lot 12 in Deposited Plan 755902 shown as right of way 50 links wide in Deposited Plan 16191 (Dealings B914851, B914852, B914853, B914854, B914857, F116322) be wholly extinguished.' 'Right of Way 10.06m wide affecting parts of Lot 1 in...