Supreme Court New South Wales Medium Neutral Citation: Sydney Redevelopments 1 Pty Ltd v Chui [2023] NSWSC 695 Hearing dates: 21 June 2023 Date of orders: 21 June 2023 Decision date: 21 June 2023 Jurisdiction: Equity - Real Property List Before: Hammerschlag CJ in Eq Decision: Orders for the imposition of an easement over the defendants' property and for the payment by the plaintiff of compensation in the sum of $63,942 Catchwords: REAL PROPERTY – EASEMENTS – Conveyancing Act 1919 (NSW) s 88K – plaintiff owns property on which it has commenced development of a 308 room hotel which includes a commercial component – defendants own adjoining property – plaintiff requires access to airspace for crane swing and to the defendants' property for the erection of a hoarding, installation of jump form and erection of scaffolding – plaintiff requires an easement over the defendants' property to execute the development – plaintiff has sought to engage with defendants who have not participated in the process – orders were made for substituted service which have been complied with – HELD: the easement sought is not inconsistent with the public interest, that the defendants can be adequately compensated and that the plaintiff has made all reasonable attempts to obtain the easement – there should be an easement and the plaintiff must pay the defendants compensation Legislation Cited: Conveyancing Act 1919 (NSW) Category: Principal judgment Parties: Sydney Redevelopments 1 Pty Ltd (ACN 632 259 646) (Plaintiff) Ng Ching Chui (First Defendant) Truong Thi Tra (Second Defendant) Representation: Counsel: G Farland and M Keene (Plaintiff) First Defendant – No Appearance Second Defendant – No Appearance Solicitors: BCP Lawyers & Consultants (Plaintiff) File Number(s): 2023/00151420 Ex Tempore JUDGMENT (REVISED) 1. Section 88K(1) of the Conveyancing Act 1919 (NSW) (the Act) gives the Court power to make orders imposing an easement over land if it is reasonably necessary for the effective use or development of other land that will have the benefit of the easement. References to sections are to sections of the Act. 2. Sections 88K(2), (3), (4) and (5) provide: (2) Such an order may be made only if the Court is satisfied that— (a) use of the land having the benefit of the easement will not be inconsistent with the public interest, and (b) the owner of the land to be burdened by the easement and each other person having an estate or interest in that land that is evidenced by an instrument registered in the General Register of Deeds or the Register kept under the Real Property Act 1900 can be adequately compensated for any loss or other disadvantage that will arise from imposition of the easement, and (c) all reasonable attempts have been made by the applicant for the order to obtain the easement or an easement having the same effect but have been unsuccessful. (3) The Court is to specify in the order the nature and terms of the easement and such of the particulars referred to in section 88(1)(a)–(d) as are appropriate and is to identify its site by reference to a plan that is, or is capable of being, registered or recorded under Division 3 of Part 23. The terms may limit the times at which the easement applies. (4) The Court is to provide in the order for payment by the applicant to specified persons of such compensation as the Court considers appropriate, unless the Court determines that compensation is not payable because of the special circumstances of the case. (5) The costs of the proceedings are payable by the applicant, subject to any order of the Court to the contrary. 1. The plaintiff owns the land at 373-375 Pitt Street, in the Central Business District of Sydney. It has development consent and a construction certificate for the demolition of the existing buildings, excavation and remediation and construction of a 34-storey 308 room hotel plus a commercial component. Preliminary works have apparently begun. 2. A pictorial representation of what is proposed is Figure 1. The development is the high-rise building in the middle. Figure 1 1. The defendants, as joint tenants, own the adjoining lot at 371 Pitt Street, which is Lot A in Deposited Plan 407286 (the Burdened Land). 2. The Burdened Land is immediately to the left of the proposed hotel in Figure 1. 3. The plaintiff's land and the Burdened Land share a common boundary of about 18 meters extending west from Pitt Street. 4. For the purposes of the development, the plaintiff requires an easement over the Burdened Land for: 1. crane swing across the whole of the Burdened Land. The crane swing will extend into airspace above a number of other adjoining properties; 2. erection of a hoarding 0.5 metres wide which will be along the northern and western boundary of the Burdened Land. The hoarding will be at the rear of the Burdened Land and is required for safety; 3. installation of jump form 0.5 metres wide. Jump form is a self-climbing formwork system designed, relevantly for present purposes, to enable construction of lift and stair cores in high-rise buildings; and 4. erection of scaffolding (which is required by the local council) 1.5 metres wide. 1. Apart from the Burdened Land, the plaintiff needs access rights to, or over, other adjoining properties and it has either obtained such rights or is in the process of, and expects to, obtain them. 2. The plaintiff made efforts to trace the owners of the Burdened Land. The furthest it got was to find out that the defendants, as lessor, are party to a formal 3-year lease with a company called "QV Enterprise Pty Ltd" for the ground level of the Burdened Land, for operation of a restaurant, the execution of which lease was witnessed by a solicitor, Ms Michelle Nguyen, the principal of My.T. Law Firm in Cabramatta. The plaintiff, directly, and through its solicitors, made contact with Ms Nguyen in an attempt to reach the defendants to negotiate access rights. 3. On 24 May 2022, Mr Warren Duncan of the plaintiff wrote to the defendants by way of email sent to Ms Nguyen, seeking the defendants' response to a request by the plaintiff for access to the Burdened Land. Shortly thereafter, Ms Nguyen phoned him and told him that she had forwarded the letter to her clients. However, on 10 June 2022, Ms Nguyen apparently informed him on the phone that her clients had told her that they did not want to be bothered by his client, that they wanted to be left alone and would not be agreeing to any license. There were then subsequent communications with Ms Nguyen, including a request for confirmation that she was authorised to accept service of the Summons, the response to which was relevantly that she did not have such instructions. 4. On 11 July 2022, Ms Nguyen wrote to the plaintiff's solicitor that she had previously contacted the defendants and they advised that they did not wish to instruct Ms Nguyen's firm to act for them in relation to the matter. She repeated that she did not have instructions to accept service. 5. On 11 May 2023, Peden J gave the plaintiff leave to file the Summons, together with an affidavit of its solicitor, Mr Marty Perry, and Mr John Fitzgerald, the plaintiff's development manager. Her Honour made the following orders for substituted service: 4. An order pursuant to rule 10.14(1), that a sealed copy of the summons and a copy of the Perry Affidavit and the Fitzgerald Affidavit be: (a) served personally upon Ms Michelle Nguyen (Ms Nguyen) of 'My.T. Law Firm', together with a sealed copy of this order and a letter requesting that Ms Nguyen forward the said documents to the first and second defendant; and (b) served by leaving a copy addressed to the defendants at 377 Pitt Street, Sydney, NSW. 5. Direct that such service of such documents (as referred to in order 4 above) and these orders may be effected, by emailing a copy of the documents and these orders to mytnguyen@me.com, marked to the attention of Ms Michelle Nguyen of 'My.T. Law Firm'. 1. Attached to the Summons as Annexure A were the proposed terms of the easement then sought by the plaintiff. Clause 1 of those terms defined Sunset date as: (a) in respect of the Hoarding, the period ending on 1 November 2024, as may be extended by the Grantee pursuant to clause 3.2; and (b) in respect of the Crane, Jump Form and Scaffolding, the period ending on 23 October 2026, as may be extended by the Grantee pursuant to clause 3.2. and Term as: (a) in respect of the Hoarding, the period between 1 May 2023 and the applicable Sunset Date (each date inclusive); and (b) in respect of the Crane, Jump Form and Scaffolding, the period between 23 October 2023 and the applicable Sunset Date (each date inclusive).­ 1. It will be observed that the commencement of the proposed Term in (a) has passed. The plaintiff seeks a variation of that term to commence on the date of the granting of an easement. I see no difficulty with this. The plaintiff also seeks that the Sunset Date for the hoarding terminate on 21 December 2024, rather than 1 November 2024. I also have no difficulty with this, it is immaterial in the present circumstances. 2. I am satisfied that the plaintiff complied with the orders for service and that, in relation to additional material upon which it intends to rely, has taken steps consistent with her Honour's orders, with a view to bringing the material to be relied upon to the attention of the defendants. On 23 May 2023, Ms Nguyen confirmed to the plaintiff's solicitor that the documents were forwarded to the client's email and she had not had any response. I am satisfied that the defendants have notice of these proceedings and of the hearing. The defendants have not appeared. 3. I am satisfied that the benefit of the easement is not inconsistent with the public interest and that the defendants can be adequately compensated. 4. The easement is necessary for the plaintiff to be able to construct a significant development and it will not negatively impact on the ability of the defendants to use their building in its current form. There is no suggestion from appropriate records, which have been inspected by the plaintiff, that the defendants have any present intention of developing it. 5. I am satisfied that the plaintiff has made, what can in the present circumstances be described as, all reasonable attempts to obtain the easement. 6. The inference is irresistible that the defendants have chosen (which is their right) not to participate in this process (with the consequence that there was nothing further the plaintiff reasonably could do), but the defendant's decision does not stand in the way of the plaintiff obtaining an easement if one should be granted. 7. As to compensation, the plaintiff relied upon a valuation report by Mr Danny Sukkar dated 9 May 2022. His report was prepared on the footing that the easement would have a 2-year duration, whereas a 3-year duration is sought to take account of the possibility of any extensions of time and other contingencies that might arise. The figure reached by Mr Sukkar totalled $42,628 for 24 months. The plaintiff proffered $59,528 as an adjustment for the additional 12 months. However, arithmetically, the adjustment should result in the figure of $63,942. 8. After discussion with counsel for the plaintiff, the plaintiff included in the proposed terms of the easement a provision to the following effect: 3.1A If, in the reasonable opinion of the Grantee, any of the rights in this easement are no longer required to be exercised for the respective purposes set out in clause 2 above during the Term, then as soon as practicable the Grantee must do all that is necessary on its part to remove any such easement from the title of the burdened land. 1. Notwithstanding that the defendants have not participated in these proceedings and that they have been served in accordance with the orders for substituted service, given that there were changes made on the day to the amount proffered by the plaintiff based on a three-year period, which was not dealt with by the valuation material served on the defendants, I propose to reserve liberty on the defendants to apply in relation to the amount of compensation which will be the subject of the orders. 2. I make the following orders: 1. Pursuant to section 88K of the Conveyancing Act 1919 (NSW) (the Act), an easement for: E1 – crane swing; E2 – hoarding 0.5 metres wide; E3 – jump form 0.5 metres wide; and E4 – scaffolding 1.5 metres wide; is imposed over the Defendants' land, being the land comprised in Lot 1 in Deposited Plan 66541 and otherwise known as 377 Pitt Street, Sydney (Burdened Land) for the benefit of the Plaintiff's land, being the land comprised in Lot A in Deposited Plan 407286 and otherwise known as 371 Pitt Street, Sydney and Lot B in Deposited Plan 407286 and otherwise known as 373-375 Pitt St, Sydney (Benefited Land) in the form of the instrument pursuant to section 88B of the Act, which is ​​​​​​Schedule 1 to this Judgment. 1. Pursuant to section 88K(4) of the Act, the Plaintiff is to pay the Defendants compensation for the easement imposed by order (1) in the sum of $63,942.00. 2. The easement is to be registered within 14 days and the parties must co-operate in doing all that is necessary to enable that to occur. 3. If the Defendants fail to comply with order (3) above, a Registrar in the Equity Division of the Supreme Court of New South Wales, is authorised to execute a dealing in the form of Schedule 1 on behalf of the Defendants, whereupon that dealing shall be deemed signed by the Defendants. 4. The Plaintiff is to pay the Defendants' costs, if any, of these proceedings up until registration of the easement. 5. A sealed copy of these orders may be validly served mutatis mutandis in accordance with orders 4 and 5 made by the Court on 11 May 2023. 6. Within 14 days after service on the Defendants of these orders, the Defendants have liberty on 7 days' notice to apply for a variation of the amount of compensation provided for in order (2). 7. Subject to order (7), the parties have liberty to apply on 7 days' notice. 8. These orders are to be entered forthwith. ********** 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: 23 June 2023