NSW Caselaw
Reported Decision : 62 NSWLR 698 (2005) NSW ConvR 56-128
New South Wales Supreme Court
Bonvale Enterprises Pty Ltd v Halfpenny Investments Pty Ltd [2005] NSWSC 219 CITATION : This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S) : 4 March 2005
JUDGMENT DATE : 14 March 2005
JUDGMENT OF : Burchett AJ
DECISION : Separate questions answered as stated in the judgment
CATCHWORDS : Easetments - creation under s.88K of the Conveyancing Act 1919 - whether the Court has power to utilize s.88A so as to order the creation of an easement in gross in favour of a Council - easement for drainage - nature of an easement - construction s.88A and s.88K - whether liberal construction of s.88K required because it is beneficial legislation conferring a power on a Court - whether expressions such as "land that will have the benefit of the easement" have a technical legal meaning and indicate the existence of a dominant tenement.
Conveyancing Act 1919 (NSW) Real Property Act 1900 (NSW) LEGISLATION CITED : Conveyancing (Amendment) Act 1930 Local Government Conveyancing (Amendment) Act 1964
In re Ellenborough Park [1956] Ch. 131 at 162 Rangeley v Midland Railway Company (1868) 3 Ch.App.306 at 310 Alfred F Beckett Ltd v Lyons (1967) Ch. 449 at 483 Woodland v Manly Municipal Council (2003) 127 LGERA 120 at 127 117 York Street Pty Ltd v Proprietors of Strata Plan No. 16123 (1998) 43 NSWLR 504 Billgate Pty Ltd v Woollahra Municipal Council (2004) BC 200405039 at para 16 CASES CITED : Knight v F.P.Special Assets Limited (1992) 174 CLR 178 at 205 PMT Partners Pty Ltd (In Liq) v Australian National Parks and Wildlife Service (1995) 184 CLR 301 at 313 Conway v The Queen (2002) 209 CLR 203 at 219 Roy Morgan Research Centre Pty Limited v Commissioner of State Revenue of the State of Victoria (2001) 207 CLR 72 at 78 Ashfield Municipal Council v Joyce [1978] AC 122 at 134 Bull v Attorney-General (NSW) (1913) 17 CLR 370 at 384 Pemsel's Case [1891] AC 531
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