Cuzeno Pty Limited v The Owners - Strata Plan 65870 [2013] NSWSC 1385

Cuzeno Pty Limited v The Owners - Strata Plan 65870 [2013] NSWSC 1385

The plaintiffs are not entitled to an implied easement under Wheeldon v Burrows, as key elements including use by the grantor at the time of transfer and presumed intention of the parties are not satisfied. However, the Court finds the easement sought under s 88K of the Conveyancing Act 1919 is reasonably necessary for the effective use of Lot 47 as a coffee shop; the defendant can be adequately compensated; all reasonable attempts to obtain the easement were made; and the discretion to order the easement should be exercised. Compensation is fixed at $8,400, and costs are to be paid by the plaintiffs.

Jurisdiction
Australia
Judgment Date
20 September 2013
Procedural Posture
Principal Judgment / Trial Judgment
Outcome
Implied easement claim dismissed; order for statutory easement imposed under Conveyancing Act 1919 s 88K; plaintiffs to pay compensation and costs.
Legal Topics
['easements' 'implied Easements' 'statutory Easements' 'non Derogation From Grant' 'conveyancing Act 1919 S 88 K' 'strata Schemes' 'costs']
['real Property' 'equity'] ['easements' 'implied Easements' 'statutory Easements' 'non Derogation From Grant' 'conveyancing Act 1919 S 88 K' 'strata Schemes' 'costs']

Case Brief

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Procedural Posture

Principal Judgment / Trial Judgment

Legal Issues

  1. 1 ['Whether circumstances gave rise to an implied easement for the benefit of Lot 47 for the use of the grease arrestor trap and associated apparatus under the first rule in Wheeldon v Burrows' 'Whether an order should be made under Conveyancing Act 1919 s 88K imposing an easement for the benefit of Lot 47' "Whether the defendant's conduct regarding fees and negotiations was unreasonable for costs purposes"]

Ratio Decidendi

The plaintiffs are not entitled to an implied easement under Wheeldon v Burrows, as key elements including use by the grantor at the time of transfer and presumed intention of the parties are not satisfied. However, the Court finds the easement sought under s 88K of the Conveyancing Act 1919 is reasonably necessary for the effective use of Lot 47 as a coffee shop; the defendant can be adequately compensated; all reasonable attempts to obtain the easement were made; and the discretion to order the easement should be exercised. Compensation is fixed at $8,400, and costs are to be paid by the plaintiffs.

Court Disposition

Implied easement claim dismissed; order for statutory easement imposed under Conveyancing Act 1919 s 88K; plaintiffs to pay compensation and costs.

Orders

  • ['Direction to parties to bring in short minutes of order to reflect judgment and draft s 88K(3) order and easement terms including pipes and vents.' 'Plaintiffs to pay defendant compensation of $8,400 pursuant to s 88K(4) of Conveyancing Act 1919.' "Plaintiffs to pay defendant's costs of proceedings."]