Tout v Johnson [2021] NSWSC 1311

Supreme Court New South Wales

Medium Neutral Citation: Tout v Johnson [2021] NSWSC 1311 Hearing dates: 30 August 2021 – 1 September and 8 September 2021 Date of orders: 14 October 2021 Decision date: 14 October 2021 Jurisdiction: Equity Before: Darke J Decision: Application for imposition of easement refused. Catchwords: LAND LAW – easements – creation of easements – creation by order of the Court – plaintiff and defendants own adjoining rural lots – lots used for residential and rural purposes – plaintiff seeks right of carriageway over a track on defendants' land to obtain access to public road – prior to hearing track was damaged by heavy rain and became impassable – easement ultimately sought by plaintiff would allow plaintiff to undertake works on track to repair damage – access to public road available using only plaintiff's land – quality of access constrained due to a creek crossing – whether easement sought is reasonably necessary for the effective use or development of plaintiff's land – whether use or development of plaintiff's land with easement at least substantially preferable to use or development of the land without the easement – deficiencies in evidence as to cost of works required on plaintiff's land and defendants' land to facilitate access – plaintiff failed to show that easement was reasonably necessary for the effective use or development of her land – s 88K(1) of the Conveyancing Act 1919 (NSW) not satisfied Legislation Cited: Conveyancing Act 1919 (NSW), s 88K Cases Cited: Gordon v Lever (2018) 97 NSWLR 90; [2018] NSWCA 43 Gordon v Lever (No 2) (2019) 19 BPR 39,915; [2019] NSWCA 275 ING Bank (Australia) Ltd v O'Shea (2010) 14 BPR 27,317; [2010] NSWCA 71 Khattar v Wiese (2005) 12 BPR 23,235; [2005] NSWSC 1014 Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd (2012) 16 BPR 31,257; [2012] NSWCA 445 Studholme v Rawson (2020) 19 BPR 40,293; [2020] NSWCA 76 Category: Principal judgment Parties: Michelle Tout (Plaintiff) Brendan Charles Johnson (First Defendant) Jodie Gail Williams (Second Defendant) The Office of the Registrar-General (Third Defendant) Representation: Counsel: Mr A Joseph (Plaintiff) Mr S Lipp (First and Second Defendants)