Tujilo v Watts [2005] NSWSC 209
The plaintiff has not discharged the onus under s 89(1)(c) Conveyancing Act 1919 to show that the modification or extinguishment of the easements over E1, E2, and E3 would not substantially injure the defendants, as the defendants make real and regular use of those land areas and loss of such rights is a substantial injury within the meaning of the statute.
- Jurisdiction
- Australia
- Judgment Date
- 16 March 2005
- Procedural Posture
- Application / Judgment
- Outcome
- Application dismissed
- Legal Topics
- ['easements' 'extinguishment and Modification of Easements' 'section 89 Conveyancing Act 1919' 'injury Under S 89(1)(c)' 'recreational Easements']
Case Brief
Summary, issues, holding and outcome
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Procedural Posture
Application / Judgment
Legal Issues
- 1 ['Whether the Court can modify or extinguish easements under s 89(1)(b) and (c) Conveyancing Act 1919 as sought by the plaintiff' 'Whether the proposed modification or extinguishment would cause substantial injury to the persons entitled to the easements' "The scope of 'injury' and 'substantial' within s 89(1)(c)" "Whether a legal technique of releasing and recreating easements is within the Court's power under s 89"]
Ratio Decidendi
The plaintiff has not discharged the onus under s 89(1)(c) Conveyancing Act 1919 to show that the modification or extinguishment of the easements over E1, E2, and E3 would not substantially injure the defendants, as the defendants make real and regular use of those land areas and loss of such rights is a substantial injury within the meaning of the statute.
Court Disposition
Application dismissed
Orders
- ['Application dismissed.' 'Plaintiff to pay costs of defendants.']
Full Case Text
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