The Owners – Strata Plan 85044 v Murrell; Murrell v The Owners – Strata Plan 85044 [2020] NSWSC 20

Supreme Court New South Wales

Medium Neutral Citation: The Owners – Strata Plan 85044 v Murrell; Murrell v The Owners – Strata Plan 85044 [2020] NSWSC 20 Hearing dates: 28, 29, 30 April and 14 May 2020 Date of orders: 1 October 2020 Decision date: 01 October 2020 Jurisdiction: Equity - Real Property List Before: Williams J Decision: See summary of the Court's conclusions at [75]. Catchwords: LAND LAW – covenants – restrictive covenants – construction – where restrictive covenant states that no matter or thing of any nature whatsoever shall be constructed on erected on placed on or permitted to remain on the servient tenement that exceeds a height of RL 26 AHD – where airspace above the servient tenement became part of the dominant tenement after registration of the restrictive covenant – whether on the proper construction of the restrictive covenant there is an implied positive covenant or easement allowing the owner of the servient tenement to enter into the airspace on a transitory basis – restrictive covenant held not to include a positive covenant or easement LAND LAW – easements – implied easements – easements of necessity – where airspace above the putative dominant tenement is owned by putative servient tenement – where that airspace previously formed part of the property of the putative dominant tenement until the registration of a plan of subdivision under which the airspace became part of the putative servient tenement – whether easement over airspace is essential for the use of the putative dominant tenement – implied easement of necessity held to have arisen at the time of the registration of the plan of subdivision – easement not enforceable by current owners of putative dominant tenement TORTS – trespass – trespass to land – title to sue - where owners corporation of a strata scheme is the registered proprietor of airspace which contains a view of Sydney Harbour and is located above an adjacent property – where airspace forms part of the common property of the owners corporation – owners corporation held to have standing to bring a claim for trespass to airspace TORTS – trespass – trespass to land – where owners corporation of a strata scheme is the registered proprietor of airspace which contains a view of Sydney Harbour and is located above an adjacent property – where it is not possible for owner of the adjacent property to access roof of that property without encroaching into the airspace – where agents of adjacent property owner enter into airspace on several occasions to effect repairs to and survey the roof for possible future development – defence of necessity established in relation to some but not all of the encroachments into the airspace – trespass held to have occurred on the other occasions – compensatory damages awarded TORTS – private nuisance – title to sue – whether the owners corporation of a strata scheme can bring a claim for private nuisance in respect of damages or loss allegedly suffered by individual lot owners in the strata scheme – owners corporation held not to have standing to bring a claim for private nuisance on behalf of lot owners LAND LAW – covenants – restrictive covenants – application to modify or extinguish restrictive covenant pursuant to s 89 of the Conveyancing Act 1919 (NSW) – power to make orders – where proposed modification to restrictive covenant seeks in substance to create an easement – no power to create an easement under s 89 of the Conveyancing Act LAND LAW – easements – court-imposed easements – Conveyancing Act 1919 (NSW), s 88K – proposed easement to access the airspace owned by putative servient tenement as reasonably necessary and on a temporary basis to repair, maintain and/or improve structures on the putative dominant tenement – whether reasonably necessary for the effective use or development of the putative dominant tenement – proposed easement reasonably necessary for effective use or development insofar as it permits access to the airspace as necessary and on a temporary basis for repairs and maintenance only LAND LAW – easements – court-imposed easements – Conveyancing Act 1919 (NSW), s 88K – compensation – whether the lot owners in a strata scheme are entitled to be compensated for any loss or other disadvantage arising from an easement to be imposed over common property of owners corporation – lot owners are not persons having an estate or interest in the common property that is evidenced by an instrument registered in the General Register of Deeds or the register kept under the Real Property Act 1900 (NSW) – lot owners not entitled to compensation – Community Association DP 270447 v ATB Morton Pty Ltd (2019) 240 LGERA 32; [2019] NSWCA 83 applied LAND LAW – easements – court-imposed easements – Conveyancing Act 1919 (NSW), s 88K – whether reasonable attempts have been made to obtain the easement or an easement having the same effect – where first attempts to obtain the easement or an easement having the same effect made only after the commencement of proceedings – where attempts made after the commencement of proceedings were sufficient in circumstances where lengthy correspondence between the parties about access, and the owner of the putative servient tenement was not prepared to grant an easement on any terms prior to receiving the first offer PRACTICE AND PROCEDURE – applications – leave to amend pleadings – application to amend summons and statement of claim – application made on the last day of a four-day hearing – no adequate explanation for the delay in making the application – where the proposed amendment merely clarifies what was already implicit in the existing pleadings – application granted LAND LAW – Torrens title – contents of Register – where restrictive covenant recorded in a previous folio of the dominant land – where that restrictive covenant is not recorded in current folio of dominant land – observations about whether the dominant and servient tenements' title is subject to the restrictive covenant Legislation Cited: Access to Neighbouring Land Act 2000 (NSW), s 11 Civil Procedure Act 2005 (NSW), ss 56, 57 and 58 Community Land Development Act 1989 (NSW), ss 15, 25, 31, 32, 33 and Sch 8 Community Land Management Act 1989 (NSW), s 5 Conveyancing Act 1919 (NSW) ss 88B, 88K, 89 Land and Environment Court Act 1979 (NSW), s 40 Real Property Act 1900 (NSW), ss 31B and 42 Strata Schemes Development Act 2015 (NSW), ss 8, 9, 10, 23, 24, 28 and 118 Strata Schemes (Freehold Development) Act 1973 (NSW), ss 6, 8, 18, 20, 21 and 24 Strata Schemes Management Act 1996 (NSW), s 227 Strata Schemes Management Act 2015 (NSW), ss 8 and 254 Woollarah Local Environment Plan 2014 (NSW) Cases Cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288 (2014) 254 CLR 185; [2014] HCA 36 Community Association DP 270447 v ATB Morton Pty Ltd (2019) 240 LGERA 32; [2019] NSWCA 83 Currumbin Investments Pty Ltd v Body Corp Mitchell Park Parkwood Cts [2012] 2 Qd R 511; [2012] QCA 9 Cuzeno Pty Ltd v Owners – Strata Plan 65870 [2013] NSWSC 1385 EB 9 & 10 Pty Ltd v Owners of Strata Plan 934 (2018) 98 NSWLR 889; [2018] NSWCA 288 Elston v Dore (1982) 149 CLR 480 Fincob Pty Ltd v Campbelltown City Council [2010] NSWSC 349 Gordon v Lever (2018) 97 NSWLR 90; [2018] NSWCA 43 Gordon v Lever (No 2) (2019) 101 NSWLR 427; [2019] NSWCA 275 Govindan-Lee v Sawkins (2016) 18 BPR 35,883; [2016] NSWSC 328 Gray v Motor Accidents Commission (1998) 196 CLR 1; [1998] HCA 70 Hill v Higgins [2012] NSWSC 270 Horseshoe Pastoral Co Pty Ltd v Rixon [2018] NSWCA 121 ING Bank Australia Ltd v O'Shea (2010) 14 BPR 27,317; [2010] NSWCA 71 Jarosz v State of New South Wales (2019) 19 BPR 39407; [2019] NSWSC 62 Khattar v Wiese (2005) 12 BPR 23,235; [2005] NSWSC 1014 Kuru v New South Wales (2008) 236 CLR 1; [2008] HCA 26 Lamos Pty Ltd v Hutichson (1984) 3 BPR 9350 Marketform Managing Agency Ltd v Amashaw Pty Ltd (2018) 97 NSWLR 306; [2018] NSWCA 70 Markos v O R Autor (2007) 13 BPR 24,487; [2007] NSWSC 810 McElwaine v The Owners – Strata Plan 75975 (2017) 18 BPR 37,207; [2017] NSWCA 239 McGrath v Campbell (2006) 68 NSWLR 229; [2006] NSWCA 180 Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd (2012) 16 BPR 31,257; [2012] NSWCA 445 Neeta (Epping) Pty Ltd v Phillips (1974) 131 CLR 286 Nickerson v Barraclough [1981] 1 Ch 426 North Sydney Printing Pty Ltd v Sabemo Investment Corp Pty Ltd [1972] 2 NSWLR 150 Owners – Strata Plan 43551 v Walter Construction Group Ltd (2004) 62 NSWLR 169; [2004] NSWCA 429 Panton v The Owners of Survey Strata Plan 46838 [2013] WASC 35 Parish v Kelly (1980) 1 BPR 9394 Plenty v Dillon (1991) 171 CLR 635; [1991] HCA 5 Rainbowforce Pty Ltd v Skyton Holdings Pty Ltd (2010) 15 BPR 29,367; [2010] NSWLEC 2 Rixon v Horseshoe Pastoral Co Pty Ltd [2017] NSWSC 1293 Sedleigh-Denfield v O'Callaghan [1940] AC 880 Sertari Pty Ltd v Nirimba Developments Pty Ltd [2007] NSWCA 324 Simon v Condran (2013) 85 NSWLR 768; [2013] NSWCA 388 State of New South Wales v McMaster (2015) 91 NSWLR 666; [2015] NSWCA 228 Tanlane Pty Ltd v Moorebank Recyclers Pty Ltd [2008] NSWSC 1341 Tenacity Investments v Ku-Ring-Gai Council [2008] NSWLEC 27 The Owners – Strata Plan No 61233 v Arcidiacono (2019) 19 BPR 39,711; [2019] NSWSC 1307 Westfield Management Ltd v Perpetual Trustee Company Ltd (2007) 233 CLR 528; [2007] HCA 45 Wheeldon v Burrows (1879) 12 Ch D 31 Texts Cited: B Edgeworth, Butt's Land Law (7th ed, 2017, Lawbook Co) R P Balkin and J L R Davis, Law of Torts (5th ed, 2013, LexisNexis Butterworths) Category: Principal judgment Parties: In proceeding 2019/201673: