KOCAGIL v CHEN [2012] NSWSC 1354

KOCAGIL v CHEN [2012] NSWSC 1354

The Court was satisfied that each matter required to be proved under s 88K(2) had been proven, that no neighbouring proprietor had opposed the application, and that the parties had agreed on the terms of the easement, compensation, costs and a related positive covenant; accordingly, orders and notations were made to give practical effect to the grant of the easement.

Jurisdiction
Australia
Judgment Date
23 November 2012
Procedural Posture
Application by Summons for an Order Under S 88 K of the Conveyancing Act 1919 (nsw) Granting an Easement to Drain Water / Principal Judgment; Ex Tempore Orders
Outcome
Orders and notations made to give effect to the determination that the plaintiffs are entitled to the grant of an easement under s 88K of the Conveyancing Act 1919 (NSW).
Legal Topics
['easements' 'conveyancing Act 1919 (nsw) S 88 K' 'drainage Easement' 'compensation' 'positive Covenant for Maintenance and Repair']
['real Property'] ['easements' 'conveyancing Act 1919 (nsw) S 88 K' 'drainage Easement' 'compensation' 'positive Covenant for Maintenance and Repair']

Case Brief

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Procedural Posture

Application by Summons for an Order Under S 88 K of the Conveyancing Act 1919 (nsw) Granting an Easement to Drain Water / Principal Judgment; Ex Tempore Orders

Legal Issues

  1. 1 ["Whether the plaintiffs were entitled to an order under s 88K of the Conveyancing Act 1919 (NSW) granting an easement to drain water over the defendants' land for the benefit of the plaintiffs' land." 'Whether the requirements of s 88K(2) of the Conveyancing Act 1919 (NSW) had been proved.' 'What orders should be made for compensation, costs, and the related positive covenant for maintenance and repair.']

Ratio Decidendi

The Court was satisfied that each matter required to be proved under s 88K(2) had been proven, that no neighbouring proprietor had opposed the application, and that the parties had agreed on the terms of the easement, compensation, costs and a related positive covenant; accordingly, orders and notations were made to give practical effect to the grant of the easement.

Court Disposition

Orders and notations made to give effect to the determination that the plaintiffs are entitled to the grant of an easement under s 88K of the Conveyancing Act 1919 (NSW).

Orders

  • ['Noted the agreement between the parties that the defendants will execute in favour of the plaintiffs a registrable instrument for the grant of an easement substantially in the terms of the document marked for identification "A".' 'Noted the agreement between the parties that the plaintiffs will execute a...