Menassa v Shi [2023] NSWSC 54

Menassa v Shi [2023] NSWSC 54

The plaintiff established that the drainage easement of variable width over 91A Raimonde is reasonably necessary for the effective development and use of 1 Maismonde, that the use is not inconsistent with the public interest, the defendants can be adequately compensated for any loss, and all reasonable attempts to obtain the easement were made. The proposal minimises impact to the servient land, with adequate compensation fixed at $26,500. The statutory and discretionary criteria under s 88K are satisfied and an easement is ordered accordingly.

Jurisdiction
Australia
Judgment Date
10 February 2023
Procedural Posture
Application Under S 88 K of the Conveyancing Act 1919 (nsw) for Imposition of Easement / Principal Judgment
Outcome
Order for imposition of a drainage easement over the defendants' land in favour of the plaintiff; compensation fixed at $26,500; costs to be determined.
Legal Topics
['easements' 'drainage Easement' 'reasonably Necessary Easement' 'compensation for Easements' 'section 88 K Application' 'residential Development' 'planning Permission' 'valuation and Compensation']
['land Law' 'equity'] ['easements' 'drainage Easement' 'reasonably Necessary Easement' 'compensation for Easements' 'section 88 K Application' 'residential Development' 'planning Permission' 'valuation and Compensation']

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 Under S 88 K of the Conveyancing Act 1919 (nsw) for Imposition of Easement / Principal Judgment

Legal Issues

  1. 1 ["Whether an easement for drainage should be imposed over the defendants' land under s 88K of the Conveyancing Act 1919 (NSW)" "Whether the easement is reasonably necessary for the effective use or development of the plaintiff's land" 'Whether all reasonable attempts to obtain the easement have been made' 'Whether the defendants can be adequately compensated for loss' 'Assessment of the impact on the servient land and public interest']

Ratio Decidendi

The plaintiff established that the drainage easement of variable width over 91A Raimonde is reasonably necessary for the effective development and use of 1 Maismonde, that the use is not inconsistent with the public interest, the defendants can be adequately compensated for any loss, and all reasonable attempts to obtain the easement were made. The proposal minimises impact to the servient land, with adequate compensation fixed at $26,500. The statutory and discretionary criteria under s 88K are satisfied and an easement is ordered accordingly.

Court Disposition

Order for imposition of a drainage easement over the defendants' land in favour of the plaintiff; compensation fixed at $26,500; costs to be determined.

Orders

  • ['An easement to drain water (1 metre wide and of variable width as per plan) is imposed over 91A Raimonde Road in favour of 1 Maismonde Place, on the terms set out in Annexure C of the judgment.' 'Plaintiff to pay $26,500 to the defendants as compensation under s 88K(4) of the Conveyancing Act 1919 (NSW).'...