Sheppard v Smith [2022] NSWCA 167

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Sheppard v Smith [2022] NSWCA 167 Hearing dates: 8 June 2022 Date of orders: 29 August 2022 Decision date: 29 August 2022 Before: Gleeson JA at [1]; Beech-Jones JA at [2]; Basten AJA at [103] Decision: (1) Appeal dismissed. (2) The Appellants pay the Respondents' costs of the Appeal. 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 Legislation Cited: Conveyancing Act 1919 (NSW), s 89 Real Property Act 1900 (NSW), ss 28U and 28V Cases Cited: Ashoil Holdings Pty Ltd v Fassoulas (2005) 12 BPR 98195; [2005] NSWCA 80 Chiu v Healey [2003] NSWSC 857 Durian (Holdings) Pty Ltd v Cavacourt Pty Ltd (2000) 10 BPR 18,099; [2000] NSWCA 28 Gotobed v Pridmore (Court of Appeal (UK), 16 December 1970, unrep) Pieper v Edwards [1982] 1 NSWLR 336 Proprietors Strata Plan 9,968 v Proprietors Strata Plan 11,173 [1979] 2 NSWLR 605 Re Mason and the Conveyancing Act [1962] NSWR 762; (1960) 78 WN (NSW) 925 Sheppard v Smith [2021] NSWSC 1207 Swan v Sinclair [1924] 1 Ch 254 Swan v Sinclair [1925] AC 227 Treweeke v 36 Wolseley Road Pty Ltd (1973) 128 CLR 274; [1973] HCA 27 Williams v Usherwood (1983) 45 P & CR 235 Category: Principal judgment Parties: Dean Frederick Sheppard (First Appellant) Meredith Jane Chapman (Second Appellant) Dean Clayton Smith (First Respondent) Emma Jane Munro (Second Respondent) Representation: Counsel: Mr GA Sirtes SC; Mr G Marsden (Appellants) Mr JM Ireland QC (Respondents)