Supreme Court New South Wales Medium Neutral Citation: Trentelman v The Owners - Strata Plan 76700 (No 2); The Owners - Strata Plan 76700 v Trentelman (No 2) [2021] NSWSC 377 Hearing dates: 30 March; 6 April 2021 Date of orders: 6 April 2021 Decision date: 14 April 2021 Jurisdiction: Equity - Real Property List Before: Parker J Decision: See [61]-[62] Catchwords: EQUITY – estoppel – proprietary estoppel – promise to give continued use of swimming pool – to be satisfied by order requiring grant of easement – form of easement – whether order should be accompanied by injunction to secure use of pool pending registration of easement – equity regards as done that which ought to have been done – injunction granted EQUITY – equitable remedies – declaration – plaintiff alleges that notation on registered plan of subdivision is legally ineffective – plaintiff seeks declaration of right – issue not of sufficient immediate significance – declaration refused Legislation Cited: Conveyancing Act 1919 (NSW), s 88BA Real Property Act 1900 (NSW), s 12 Cases Cited: Delaforce v Simpson-Cook (2010) 78 NSWLR 483 Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 Re Ellenborough Park [1956] Ch 131 Regency Villas Title Ltd v Diamond Resorts (Europe) Ltd [2018] UKSC 57; 3 WLR 1603 Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438 Walton v Walton (1994) (Court of Appeal, 14 April 1994, unrep) Category: Procedural rulings Parties: 2018/312426 Natalia Trentelman (Plaintiff/Cross-Defendant) The Owners - Strata Plan 76700 (First Defendant/Cross-Claimant) Registrar-General, New South Wales (Second Defendant) 2018/328341 The Owners - Strata Plan 76700 (Plaintiff) Natalia Trentelman (Defendant) Representation: Counsel: 2018/312426 M Ashhurst SC/G Farland (Plaintiff/Cross-Defendant) E Peden SC/ J Mee (First Defendant/Cross-Claimant) 2018/328341 E Peden SC/ J Mee (Plaintiff) M Ashhurst SC/G Farland (Defendant) Solicitors: 2018/312426 Bannermans Lawyers (Plaintiff/Cross-Defendant) Sarvaas Ciappara Lawyers (First Defendant/Cross-Claimant) Submitting appearance Registrar-General, New South Wales (Second Defendant) 2018/328341 Sarvaas Ciappara Lawyers (Plaintiff) Bannermans Lawyers (Defendant) File Number(s): 2018/312426; 2018/328341 Publication restriction: Nil Judgment 1. On 26 February I delivered judgment in these proceedings, setting out my conclusions on the parties' claims and defences: Trentelman v The Owners - Strata Plan 76700; The Owners - Strata Plan 76700 v Trentelman [2021] NSWSC 155. I adjourned the proceedings to allow the parties to formulate orders giving effect to those conclusions and dealing with costs. 2. By arrangement between the parties, the proceedings came before me for argument on 30 March. As a result of issues which arose in the course of the argument, there was a further short hearing on 6 April. On that day I made final orders and reserved my decision on costs. 3. In this judgment I set out my reasons for the form of the final orders which I made on 6 March. I will deliver my decision on costs at a later date. This judgment assumes familiarity with my February judgment, paragraphs of which are denoted "J1". It uses the same abbreviations as I used in that judgment. 4. As noted at J1 [17]-[27], I was dealing with two lawsuits. In one the Strata Corporation was the plaintiff and Mrs Trentelman the defendant. In the other, Mrs Trentelman was the plaintiff, the Strata Corporation was the first defendant and the Registrar-General was the second defendant. 5. In its lawsuit, the Strata Corporation alleged that promises were made before and at its 2014 AGM by Mrs Trentelman or on her behalf that she would "give" the residents the swimming pool the subject of the proceedings, or continued use of it in the future. The context for these alleged promises was Mrs Trentelman's wish to convert other development lots owned by her into ordinary lots under the RPA: see J1 [17]. A special resolution was passed at the AGM consenting to this step and it was later carried out. The Corporation sought orders in the nature of specific performance so as to require Mrs Trentleman to grant the rights allegedly promised in return. 6. I ultimately found that a promise had been made in the terms alleged by the Corporation. I rejected the Corporation's contention that it was enforceable as a contract, but upheld a claim based on proprietary estoppel. 7. At the time of the 2014 AGM, there was a registered easement over Mrs Trentelman's land in favour of most of the residents' lots allowing them to use the swimming pool, but this expired in October 2017: see J1 [11]. I concluded that the best way in which to satisfy the equity was by requiring Mrs Trentelman to grant to the Corporation a further, perpetual, easement in substantially similar terms. 8. Mrs Trentelman's lawsuit centred on the Pool Notation introduced by the December 2014 plan of subdivision which purported to make the pool structures part of the common property: see J1 [19]-[20]. Counsel for Mrs Trentelman challenged the Notation on two bases. The first was that, as a matter of construction of the relevant legislation, the plan of subdivision was ineffective to convert the pool structures to common property: J1 [315]. The second was that the Pool Notation involved an error and should be removed from the register pursuant to RPA, s 12(1)(d): J1 [316]. 9. Early in the hearing, counsel for the Strata Corporation conceded that, in its registered form, the Pool Notation was of little, if any, practical value. This was because, if valid, it only applied to the pool structures themselves, not the air above them or the soil beneath them. Nevertheless counsel did not concede that Mrs Trentelman's claims for relief should be granted, and those claims were the subject of evidence and argument. 10. As I described at J1 [14]-[16], in the course of supplementary closing submissions, counsel contended that the Notation should be rectified so as to confer ownership on the Strata Corporation as common property of not only the pool structures but also the air above and soil below. Counsel sought leave, out of time, to bring a cross-claim to this effect. This was opposed by Mrs Trentelman on both procedural and substantive grounds. 11. Mrs Trentelman's claim of mistake failed on the facts. I did not accept that the Pool Notation had been created unintentionally. I therefore rejected Mrs Trentelman's application to have the Pool Notation removed from the register: J1 [325]. While I allowed the Strata Corporation the leave it required to propound its cross-claim for rectification, I concluded that the cross-claim did not succeed. Essentially this was because, although I was satisfied that a mistake had been made in the conveyancing, I could not be satisfied what the precise intention had been: J1 [331]. I found it unnecessary to decide whether the Notation complied with the terms of the relevant legislation: J1 [324]. Strata Corporation's lawsuit Further submissions on detriment 1. As I described at J1 [303]-[310], at one point in the written submissions following the hearing counsel for Mrs Trentelman complained about the way in which counsel for the Strata Corporation put its case on detriment. It was only after the hearing had been completed that counsel for the Strata Corporation expressly contended that the steps taken by the Corporation to facilitate the conversion of Mrs Trentelman's development lots into ordinary RPA lots amounted to detriment. It was not clear to me whether there was any real prejudice to Mrs Trentelman, given that her senior counsel appeared to accept that these steps were taken pursuant to the resolution passed in July 2014 which clearly and plainly had always been relied upon as part of the Corporation's detriment. I decided however to allow counsel for Mrs Trentelman to present further submissions on this question. 2. Counsel did present further submissions. Those submissions made it clear that counsel's objection was to any attempt by the Corporation to rely by way of detriment upon different conveyancing steps, namely the preparation and registration of the December 2014 plan of subdivision referred to at [8] above. Counsel for the Corporation made it clear that there was no such reliance. There was no objection to the Corporation relying by way of detriment on the conversion of the development lots to RPA lots. The potential issue thus fell away. Form of easement 1. The parties agreed that, given my conclusions, the Strata Corporation was entitled to require Mrs Trentelman to execute a transfer granting an easement in favour of the Corporation. 2. Counsel for Mrs Trentelman did not dispute that it is possible to have a valid easement for use of land as a swimming pool. Such an easement is similar to the easement over an area of parkland for recreational purposes, the validity of which was upheld by the Court of Appeal for England and Wales in the famous case of Re Ellenborough Park [1956] Ch 131. An easement for the use of part of a building as a swimming pool was recognised as effective by the Supreme Court of the United Kingdom in Regency Villas Title Ltd v Diamond Resorts (Europe) Ltd [2018] UKSC 57; 3 WLR 1603. 3. Schedule 8 to the Conveyancing Act 1919 (NSW) sets out standard wording for various common types of easement, such as a right of carriage way, an easement to drain water and so on. The schedule does not however include standard form wording for any recreational easement comparable with the present one. It was therefore necessary to draft the grant of easement without the benefit of a precedent. 4. Counsel for Mrs Trentelman only participated in this process to a limited extent. They took the position that they had no obligation to assist in resolving drafting questions which the parties had never considered, let alone agreed upon. With due respect, counsel submitted that the whole exercise showed that my judgment was flawed in the first place. 5. While counsel were entitled to take the position they took, I do not agree with their submission. For reasons I gave at J1 [282]-[291], there must be a promise, but that promise does not need to be of a sufficient level of certainty to give rise to contractual obligations. In a case where the promise lacks the certainty required for it to have contractual effect, it is ultimately up to the court to put the plaintiff's entitlement to relief into proper conveyancing form. 6. To the extent that the evidence permits, the court should do its best to reflect the parties' understanding in the orders. I have already done that in this case by deciding to order the execution of an easement rather than the transfer of the pool land: see J1 [311]. Otherwise the details are matters for the court to resolve by reference to what it considers reasonable. 7. As ultimately formulated, there were three main elements to the easement. The first was the grant itself. This provided for use of the pool structures for recreation and ancillary purposes. The ancillary purposes included: access to the pool land; use of the pool building; repairs and maintenance; and the installation of services. 8. As noted at J1 [246]-[261], there are already water and drainage pipes and electricity connections which serve the pool as well as the other buildings on lot 53. The Corporation may have existing rights to maintain those services for the benefit of the pool. The purpose of including a grant for installation of services was not to affect whatever rights the Corporation may have, but only to ensure that the Corporation will be entitled to install such services in the future if it needs to do so. 9. The second element of the easement was a covenant containing an obligation on the owner of the dominant tenement to pay for the repair and maintenance of the pool structures. This had been an element of the previous easement. The parties also recognised that the pool structures have finite useful lives, and will eventually require replacement. This was accommodated by defining repairs and maintenance for the purpose of the covenant as including replacement of structures at the end of their useful lives. 10. The third element was a provision enabling the surrender of the easement by the owner of the dominant tenement. lf this right is exercised, the repair and maintenance obligation will cease. 11. As I understood it, the inclusion of these elements was not disputed. Counsel for Mrs Trentelman, however, submitted that it was insufficient merely to have an obligation to repair and maintain the pool structures. Counsel submitted that the continuation of the easement should be made conditional upon compliance with the repair and maintenance obligation in the covenant. 12. This submission was based on the Conveyancing Act 1919 (NSW), s 88BA(1), which provides: A covenant may be imposed requiring the maintenance or repair, or the maintenance and repair [sic], of land that is the site of an easement or other land that is subject to the burden of the easement (or both) by any one or more of the persons from time to time having the benefit or burden of the easement. 1. Counsel submitted that the reference to "maintenance or repair" in this provision would not apply to the replacement of the pool at the end of its useful life. Accordingly, counsel submitted, compliance with the obligation should be made conditional, otherwise there would be no means of enforcing the obligation to replace the pool. 2. In my view, this was too narrow a reading of s 88BA(1). What the provision does is to make enforceable a covenant "requiring" maintenance or repair. On any view as a matter of language the covenant in question answered that description. 3. If the covenant contained some other obligation completely independent of maintenance and repair, there might be a question as to whether that obligation would be enforceable under s 88BA(1). But the boundary between maintenance and repair on the one hand, and replacement on the other, is a porous one (in the definition adopted in the easement, replacement was defined as including the replacement of parts of the pool structures). I saw no reason why a covenant with a definition of repair and maintenance which included replacement should not be enforceable. Dominant tenement 1. Counsel for the Strata Corporation proposed that the dominant tenement should be made up of the common property and the residential lots in the strata scheme. Counsel initially drafted the easement accordingly, providing expressly for the owners of the residential lots and their invitees to have rights of use of, and access to, the pool, subject to any by-laws of the strata scheme. But the repair and maintenance obligation was to fall on the Corporation only. Similarly, the right to surrender the lease was to be exercisable only by the Corporation. 2. It is true that under the previous easement the dominant tenement consisted of all (except two) of the residential lots in the strata plan. Strictly speaking, the easement imposed the obligation to pay for repairs and maintenance on those lot owners. But no one appears to have taken any notice of the fact that some of the lots were omitted; in practice the maintenance of the pool was treated as an obligation of the Strata Corporation: see J1 [41]-[42]. 3. In my judgment I considered that the proper construction of the relevant promise was that it was made in favour of the Strata Corporation: J1 [272]-[276]. Had I not reached that conclusion, the proprietary estoppel claim would have failed, because the individual lot owners had not been joined as plaintiffs to the proceedings. Making an order which gave them individual rights of user would have been open to the immediate objection that they were not parties to the proceedings. 4. Furthermore, if the easement had been framed so as to confer rights on individual lot owners those rights would necessarily be rights to be exercised in common with other lot owners (compare the text of the easement in Re Ellenborough Park quoted at 165). That could have led to disputation between individual lot owners if they came into conflict with each other over the right of user (for example, over the pool's operating hours). I was not sure that making the rights of access subject to by-laws of the strata scheme would have been a complete solution to this problem. It would have created an awkward situation under which individual lot owners' rights of access as against the owner of the servient land (currently Mrs Trentelman) would be defined by rules fixed by a third party. 5. In my view, the answer was to confine the dominant tenement to the common property belonging to the Strata Corporation. Such an approach reflected the fact that under the previous easement the pool was for practical purposes treated as an extension of the common property. Counsel for Mrs Trentelman did not suggest that such an easement would lack validity on the grounds that it did not accommodate the common property (cf Re Ellenborough Park at 140). 6. The consequence will be that the easement operates in favour of the Strata Corporation and persons authorised by it. Questions of balancing lot owners' interests in the exercise of the rights under the easement can be dealt with in by-laws (or the constitution) of the Corporation, but that process will be internal to the Corporation, where it belongs. The Corporation will also bear the obligations under the repair and maintenance covenant, and have the right to surrender the easement, without the complication of there being parallel individual interests of lot owners. Servient tenement 1. The servient tenement under the former easement was lot 7. In the easement drafted by counsel for the Strata Corporation the servient tenement was described as lot 53, which replaced lot 7 under the December 2014 plan of subdivision. But counsel for Mrs Trentelman pointed out that lot 53 contains a sliver of land which was formerly part of lot 6 and was incorporated in lot 53 by means of boundary adjustment: see J1 [7], where the previous boundary is shown by a dashed line. Counsel submitted that under the new easement the servient tenement should be restricted to that part of lot 53 which was formerly lot 7. 2. It is curious that the former easement defined the servient tenement as the whole of lot 7. It was not necessary to do so. The swimming pool occupied only a confined area of the lot in the south eastern corner. For practical purposes, as with the former easement, use of the pool in accordance with the new easement will be limited to that area, with such occasional access as may be required to a strip of land on the western side, in order to carry out maintenance: see J1 [245]. Had Mrs Trentelman sought to limit the servient tenement to the land around the pool structures I would have accommodated her. But she did not make any such request. 3. I could not see how the difference between the parties' positions was of any practical significance. The strip of land in question is too far from the pool to be affected by the easement. As a matter of expediency, I decided to leave lot 53 as the servient tenement. Removal of Pool Notation 1. As already noted, I decided in the end not to disturb the Pool Notation. But its continued existence on the register is at best untidy. Certainly it will be unnecessary once the easement is in place. I therefore suggested in my judgment (J1 [333]) that at the same time as the transfer granting easement was registered, the Strata Corporation should be required to consent to the removal of the Pool Notation. 2. Counsel for Mrs Trentelman contended that it was inappropriate to make any such order in the Strata Corporation's lawsuit. As will be seen below, counsel contended Mrs Trentelman was entitled in her lawsuit to a declaration that the Notation is invalid. Counsel submitted that if instead I made an order in these proceedings effectively removing the Notation, that could have unfair consequences for Mrs Trentelman's lawsuit. 3. For reasons given below, I have not made a finding in Mrs Trentelman's favour on the invalidity point and I do not propose to make the declaration sought. I therefore will require the surrender of the Pool Notation at the same time as the registration of the transfer granting easement. I will ensure that this does not affect the costs outcome in Mrs Trentelman's lawsuit. Declaration and injunction 1. Counsel for the Strata Corporation proposed that the orders would also contain a declaration that it had been entitled from 18 October 2017 to use the pool structures, and an injunction against the prevention of access. Counsel for Mrs Trentelman resisted the grant of any such relief. 2. Counsel for Mrs Trentelman pointed out that I rejected the claim brought by the Strata Corporation in contract. Counsel noted that the transfer granting easement would only be effective from registration. Counsel thus argued that there was no basis for granting any injunction which would secure access in accordance with the terms of the proposed easement until registration had taken place. 3. It is true that I rejected the claim in contract and the easement will only be enforceable as a matter of real property law upon registration. But this does not mean that the Strata Corporation has no entitlement to use in the meantime. The cause of action to enforce an equitable estoppel arises when the defendant resiles from the promise: see Delaforce v Simpson-Cook (2010) 78 NSWLR 483 at 496 [81] quoting Walton v Walton (1994) (Court of Appeal, 14 April 1994, unrep) at 805. Equity regards as done as that which ought to be done. I therefore considered that the Corporation was entitled to a declaration recognising its equitable interest and an injunction until the interest could be perfected. 4. The consequence was that the Corporation could have been entitled to compensation for the period while it was held out of access to the pool. At the same time, Mrs Trentelman would have been entitled to reimbursement for the costs of the pool's upkeep. But neither party made any claim to have such entitlements quantified and I therefore passed this by. Application for stay 1. Counsel for Mrs Trentelman foreshadowed that Mrs Trentelman would appeal my decision. Counsel applied for me to stay the operation of any declaration and injunction until the determination of the appeal. This was based on evidence of events which had occurred following the delivery of my February judgment. 2. On 15 March, around three weeks after my decision, Mrs Trentelman received an email from the Corporation's building manager, Dominique Williams, informing her that the Corporation intended to open the pool on behalf of the owners the following day. Mrs Trentelman's solicitor responded on the same day advising Ms Williams that given no orders had been made, the Corporation had no right to access to the pool. 3. On the following day, 16 March, at around 10.00am, Ms Williams and her husband Byron Williams, together with Mr Luddington (the Chairman of the Corporation), Mr McKnight (the Corporation's solicitor) and three tradesmen, descended upon the pool area intending to open the gate. This was resisted by Mr and Mrs Trentelman. An altercation occurred. 4. According to an affidavit from Mrs Trentelman, Mr Williams climbed the fence and entered the pool and there was some sort of fracas. Mrs Trentelman annexed to her affidavit photographs of bruises she said she suffered as a result. The police were called to the scene later that day. Mrs Trentelman has applied for an apprehended violence order against Mr Williams. 5. The Corporation's version of events appeared in an affidavit from Mr Williams. He stated that he was threatened by Mr Trentelman, who then swung a wooden axe handle at him. Nevertheless he climbed over the fence and started to remove the screws which were keeping the gate shut. The Trentelmans tried to stop him. Mrs Trentelman pushed his head against the wall and grabbed his throat, while Mr Trentelman pressed a ladder against his back. 6. It seems that Mr Williams did not succeed in removing all the screws. Nevertheless at some point he removed his clothes and entered the pool. He then left shortly afterwards. He too stated that he had suffered minor injuries. 7. As counsel for Mrs Trentelman acknowledged, the Strata Corporation was prima facie entitled to the fruits of its victory. And the Trentelmans were wrong in asserting that there was no basis for the residents to be able use the pool until the easement was registered. 8. It was not possible to make findings on exactly what happened on 16 March. It appears however that the Corporation's representatives may have acted wrongly by taking matters into their own hands. But I considered that any such misconduct should not operate to deprive the Corporation of its corporate rights. Those rights are for the benefit of the residents as a whole and it would be wrong to penalise all of the residents whether or not they were involved, or acted improperly. 9. Clearly it was convenient to stay the operation of the order requiring Mrs Trentelman to prepare, execute and register a transfer granting easement until the appeal has been decided. But I did not consider that there was any valid ground for staying the operation of the declaration and injunction in the meantime. 10. In particular, I did not think that any irreparable prejudice would be suffered by Mrs Trentelman if the residents were able to use the pool. Regrettable as the incident on 16 March had been, there was no reason to think that it would be repeated once the Court had ruled that the residents had an enforceable equitable right to use the pool. It was not easy to see what loss Mrs Trentelman would suffer from their doing so. Certainly it would not render the hearing of the appeal nugatory. 11. When I announced this conclusion, counsel for Mrs Trentelman nonetheless sought a two week stay of operation of the declaration and injunction to enable Mrs Trentelman to make an application for a stay in the Court of Appeal. This was strongly opposed by counsel for the Corporation on the basis that it would involve a nullification of my decision for the rest of the last school holiday period before winter. Nevertheless I accepted the assurance from senior counsel for Mrs Trentelman that he had specific instructions to seek such a stay and I assumed that in accepting those instructions he satisfied himself that there was a proper basis for doing so. In those circumstances, I granted a two week stay of the operation of the declaration and injunction as requested. Mrs Trentelman's lawsuit 1. Counsel for Mrs Trentelman pressed me to make a declaration of invalidity of the Notation as part of the final orders in Mrs Trentelman's lawsuit. Counsel seized on the fact that at the hearing counsel for the Corporation effectively conceded that there would be little, if any, value in upholding the Pool Notation on its own. Counsel submitted the appropriate course was now to make the declaration sought. 2. I do not accept this submission. I have not actually upheld the argument for Mrs Trentelman on construction. I have declined to deal with it. I would only be able to make the declarations sought if I were now to consider that argument, and I do not propose to do so. 3. Like any other form of equitable relief, a declaration is discretionary and is only available if relief at law is for some reason inadequate. Sometimes, as here, the plaintiff seeks a declaration of right independent of any cause of action at law. In such a case, the court must be satisfied that there is a real issue which it needs to resolve. Otherwise the court may simply decline to make the declaration sought: see Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 at 437-438 quoting Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438 at 448. Refusal of a declaration in such circumstances does not of course affect the legal rights of the parties. If the issue does later arise in the context of an action at law, it can be decided then. 4. In the present case, it was far from clear to me that there would ever be a claim for non-declaratory relief between the parties which would raise the Pool Notation's validity. Certainly counsel for Mrs Trentelman did not suggest how that could happen. In my view there was no need to consider the construction issue for the purposes of deciding whether to make a declaration. 5. For these reasons, the appropriate order to reflect my findings was to dismiss Mrs Trentelman's claim. The mistake claim failed on the merits and the rest of the claim failed on discretionary grounds. There was no dispute that while leave to file the cross-claim should be granted in accordance with the conclusions in my judgment, the cross-claim should also be dismissed. Orders 1. The orders of the Court made on 6 April 2021 in Mrs Trentelman's lawsuit (2018/312426) were: 1. Grant leave to the defendant to file out of time its cross-summons dated 21 July 2020. Direct the cross-summons be filed using the Court's electronic filing system by close of business on 8 April 2021. 2. Order that the plaintiff's claim be dismissed. 3. Order that the defendant's cross-claim be dismissed. 4. Reserve the question of costs. 1. The orders of the Court made on 6 April 2021 in the Strata Corporation's lawsuit (2018/328341) were: 1. Declare that, as from 18 October 2017, the plaintiff has been entitled in equity to an easement over the land owned by the defendant in lot 53 within strata scheme 76700 in the terms of the Transfer Granting Easement referred to in order 3. 2. Order that, until registration of the Transfer Granting Easement referred to in order 3, the defendant, by herself or her occupiers, invitees, agents, employees or contractors, not by themselves or by item, lock or structure, prevent access to the Pool or Facilities by the plaintiff or by persons authorised by the plaintiff. 3. Order that: 1. forthwith, the defendant prepare, execute and provide to the plaintiff a duly executed and registrable form of Transfer Granting Easement, completed with the following details: 1. the servient tenement is the whole of lot 53 in strata plan of subdivision 91510; 2. the dominant tenement is the common property in Strata Scheme 76700; 3. the transferor is the defendant; 4. the description of the easement is "right to use the burdened land for the purpose of recreational use of the Pool Structure and for other purposes reasonably incidental to that use, as more particularly described in Annexure A"; 5. the transferee is the plaintiff; 6. the terms of the easement are those set out in Annexure A to these orders; 1. upon receipt of the Transfer Granting Easement from the defendant, the plaintiff execute it, together with a consent to the removal from the title to lot 53 of the Pool Notation (as that term is defined in the judgment of the Court delivered on 26 February 2021); 2. upon receipt of the duly executed Transfer Granting Easement and consent to the removal of the Pool Notation, the defendant arrange for the lodgement for registration of the Transfer Granting Easement within 14 days and for the removal of the Pool Notation as soon as reasonably practicable. 1. Direct that these orders be entered forthwith. 2. Reserve the question of costs. 3. On the undertaking of the defendant to apply to have the appeal proceedings expedited and to prosecute those proceedings with reasonable dispatch, order that the operation of order 3 be stayed until further order of this Court or of the Court of Appeal. 4. On the undertaking by the defendant to pay any damage which may result to the plaintiff from the grant of this stay, stay the operation of declaration 1 and order 2 for a period of 14 days. Annexure A: Terms of easement Grant of easement 1. The Grantee and persons authorised by the Grantee have full and free right to use the burdened land for the purpose of recreational use of the Pool Structure and for other purposes reasonably incidental to that use, including: 1. access to the Pool Structure and the Pool Building; 2. the use of the Pool Building to house pumps, storage facilities, changing rooms, showers and toilets; 3. the repair and maintenance of the Pool Structure and the Pool Building; 4. the provision of water, sewage and electrical services to the Pool Structure and the Pool Building which may be necessary or convenient for any of the uses authorised under this easement. Repair and maintenance covenant 1. The Grantee must, at the Grantee's own cost, repair and maintain, and keep repaired and maintained, the Pool Structure, the Pool Building and the Infrastructure. Surrender of this easement 1. The Grantee may at any time in writing surrender this easement, whereupon the Grantee's obligations under the maintenance and repair covenant in this easement will cease. Definitions 1. In this easement: 1. Pool Structure means the swimming pool that is located upon the servient tenement, and includes the paved area around the pool; 2. Pool Building means the amenities block that is located upon the servient tenement to the west of the Pool Structure, including pump room, change rooms, toilets and showers; 3. Infrastructure means all pipes, wires, cables or ducts servicing the Pool Structure and the Pool Building which may be installed by the Grantee pursuant to its rights under this easement; 4. Grantee means the registered proprietor of the dominant tenement; 5. Strata Scheme means strata scheme no. 76700, of which the servient and dominant tenements form part. 1. A reference in this easement to any of the Pool Structure, the Pool Building and the Infrastructure includes all fixtures or other property forming part of them, and any fixtures or other property by which they may be replaced. 2. A reference in this easement to repair and maintenance of any of the Pool Structure, the Pool Building and the Infrastructure shall include the replacement of the Pool Structure, the Pool Building and the Infrastructure or part thereof when it, or the relevant part, reaches the end of its useful life. ********** Amendments 15 April 2021 - amend typographical error DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 April 2021