Tomara Holdings Pty. Ltd. v. Pongrass & Anor. [1999] NSWSC 1191

New South Wales Supreme Court CITATION : Tomara Holdings Pty. Ltd. v. Pongrass & Anor. [1999] NSWSC 1191 CURRENT JURISDICTION : Equity Division FILE NUMBER(S) : No. 2119 of 1999 HEARING DATE(S) : 1 December 1999 JUDGMENT DATE : 1 December 1999

PARTIES : Tomara Holdings Pty. Ltd. - Plaintiff Nicolas Andru Pongrass and Leigh-Anne Clunes-Pongrass - Defendants JUDGMENT OF : Hodgson CJinEq at 1

COUNSEL : R. Walker for Plaintiff S. Gullotta for Defendants SOLICITORS : Sutton & Co., St. Ives for Plaintiff Colin Biggers & Paisley, Sydney for Defendants CATCHWORDS : Real Property - Easements - Construction DECISION : See pars.38 onwards of judgment

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

CORAM: HODGSON, CJ in Eq.

Wednesday 1st December 1999

NO. 2119 OF 1999 TOMARA HOLDINGS PTY. LTD. V. PONGRASS & ANOR.

JUDGMENT

1 HIS HONOUR: The plaintiff Tomara Holdings is the owner of a property 16 Pearce Street, Double Bay, which adjoins the property 2A Castra Place, Double Bay, owned by the defendants Mr Pongrass and Mrs Clunes-Pongrass. The plaintiff's property has the benefit of a right of way over part of the defendants' property, giving access from Castra Place to the rear of the plaintiff's property. This right of way was created by a transfer in 1961, and contains certain conditions numbered (a) to (f). The defendants gave the plaintiff notice pursuant to those conditions on 12 March 1999, indicating an intention to revoke the right of way unless the notice was complied with. 2 By its summons in these proceedings, the plaintiff seeks a declaration that that notice was invalid, and consequential relief, and also seeks an order modifying the easement to remove conditions (b) to (d). The defendants have put on a cross-claim seeking an order that the plaintiff remove certain encroachments on the easement, and consequential relief, and also orders extinguishing or modifying the easement pursuant to S 89 of the Conveyancing Act. 3 In relation to the s.89 orders sought by the defendants, for reasons given in a short judgment delivered earlier today that matter is not being determined today, but will be dealt with later when further evidence has been put on by both sides. 4 I will briefly outline those facts which are not in dispute. 5 The easement which was created by a transfer from the then owner of 2A Castra Place, was expressed to be subject to the following conditions: (a) That the said Transferees shall at their own cost and expense keep the said carriage way in repair.