Blulock Pty Ltd v Majic [2001] NSWSC 1063

Reported Decision : (2002) NSW ConvR 56-012

New South Wales Supreme Court

CITATION : Blulock Pty Ltd v Majic [2001] NSWSC 1063 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 4756 of 2001 HEARING DATE(S) : 8 November 201 JUDGMENT DATE : 22 November 2001

PARTIES : Blulock Pty Limited (Plaintiff) John Majic (Defendant) JUDGMENT OF : Windeyer J at 1

COUNSEL : Mr A M Gruzman (Plaintiff) Mr L Aitken (Defendant) SOLICITORS : Andreones (Plaintiff) Colbron & Associates (Defendant) CATCHWORDS : REAL PROPERTY - easements - application under s88K of Conveyancing Act - plaintiff sought 6 metre easement for light and air over defendant's property in order to satisfy council's development requirements - whether easement "reasonably necessary" for use and enjoyment of plaintiff's land - whether owner of servient land could be adequately compensated - whether court has discretion in respect of s88K - whether court should exercise discretion LEGISLATION CITED : Conveyancing Act 1919 s88B, s88K CASES CITED : 117 York Street Pty Limited v Proprietors Strata Plan No 16123 (1998) 43 NSWLR 504 Tregoyd Gardens Pty Ltd v Jervis (1997 8 BPR 97688 DECISION : See paragraph 24

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION WINDEYER J THURSDAY 22 NOVEMBER 2001 4756/01 Blulock Pty Limited v John Majic and anor Judgment Issues 1 The question is whether the court should impose an easement over land owned by the first defendant in favour of the land owned by the plaintiff to give light and air to a building on the plaintiff's land which the plaintiff proposes to re-develop as residential units. Proceedings between the plaintiff and the second defendant have been resolved. At times I will refer to Mr Majic as the defendant. Facts 2 Blulock Pty Limited (Blulock) is the owner of property known as 47-53 Cooper Street, Surry Hills, being the land in Certificate of Title Folio Identifier 1/570031 which is Lot 1 in Deposited Plan 570031. I will refer to this land as Lot 1. 3 The first defendant, Mr Majic (Majic) is the owner of property 45 Cooper Street, being the land in Certificate of Title Folio Identifier 5/441196 being Lot 5 in Deposited Plan 441196. This land partly adjoins the Blulock property on the western side of Lot 1. I will refer to this land as Lot 5. Copies of DP 441198 and part of DP 570031 showing Lot 1 appear on the following page. Lot 5 does not include the clear non-hatched area of land where the words "site of right of" appear, but it does include the lightly hatched area where the words "way variable width" appear.