Gordon v Shaheen [2005] NSWSC 1328

New South Wales Supreme Court

CITATION : Gordon v Shaheen [2005] NSWSC 1328

HEARING DATE(S) : 15 December 2005

JUDGMENT DATE : 15 December 2005

JURISDICTION : Equity

JUDGMENT OF : Hamilton J

DECISION : Easement imposed on defendants' land under s 88K of the Conveyancing Act 1919.

CATCHWORDS : REAL PROPERTY [409] - Easements - Easements generally - Creation - By express agreement or under statute - Other matters - Grant by Court - Reasonably necessary for effective use or development of land - Discretion of Court.

LEGISLATION CITED : Conveyancing Act 1919 s 88K

117 York Street Pty Limited v Proprietors of Strata Plan 16123 (1998) 43 NSWLR 504 Khattar & Anor v Wiese [2005] NSWSC 1014 CASES CITED : Tregoyd Gardens Pty Ltd v Jervis (1997) 8 BPR 15,545 Woodland v Manly Municipal Council (2003) 127 LGERA 120

Philip Gordon (P1) Nicole Gordon (P2) PARTIES : Irene McAdam (P3) Melad Shaheen (D1) Leila Shaheen (D2)

FILE NUMBER(S) : SC 5701/05

J S Drummond (Ps) COUNSEL : No appearance (Ds)

Bateman Battersby (Ps) SOLICITORS : No appearance (Ds)

LOWER COURT JURISDICTION :

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

HAMILTON J

THURSDAY, 15 DECEMBER 2005

5701/05 PHILLIP GORDON & ORS v MELAD SHAHEEN & ANOR JUDGMENT 1 HIS HONOUR: This is an application by three plaintiffs for an order under s 88K of the Conveyancing Act 1919 ("the CA") over land owned by the defendants. The easement sought is a drainage easement for the drainage of stormwater. The defendants do not appear, so there is no opposition, but, of course, the Court must still take care to be satisfied of various matters before it exercises its function under s 88K to make what is, in its nature, a confiscatory order. 2 The issues which arise for determination in these proceedings are those recently defined by Brereton J in Khattar & Anor v Wiese [2005] NSWSC 1014 at [2] as follows: