Recent Cases

Sheppard v Smith [2022] NSWCA 167 (29 August 2022) (Gleeson and Beech-Jones JJA, Basten AJA)


Catchwords:


EASEMENTS – application to extinguish right of way – s 89(1) Conveyancing Act – adjacent properties – obsolescence – right of way granted in 1885 in unlimited terms – purposes included, but not limited to, removal of “nightsoil”– right of way fell into disuse after sewers connected in 1908 – no error in primary judge’s finding that easement should not be deemed obsolete

EASEMENTS – abandonment – title to dominant tenement became indefeasible in 2010 – owners took ‘active steps’ to include right of way on title – servient tenement not part of appellants’ property until possessory title approved in 2019 – title granted subject to right of way fence erected between properties preventing access – garden bed and fishpond built on servient tenement – after grant of indefeasible title dominant tenement owners built new fence, shed and wall impeding access to right of way – owners of servient tenement replaced garden bed and fishpond with wall – extended room over right of way – whether intention to abandon easement should be inferred – non‑user and building of non-permanent obstacles thereafter did not establish abandonment

EASEMENTS – substantial injury – continued existence of easement would secure practical benefit to owners of dominant tenement – no error in primary judge’s finding that it was not shown that extinguishment would not substantially injure the owners of the dominant tenement – appeal dismissed