Tujilo v Watts [2005] NSWSC 209

New South Wales Supreme Court

CITATION : Tujilo v Watts [2005] NSWSC 209

HEARING DATE(S) : 14/2/05 - 17/2/05

JUDGMENT DATE : 16 March 2005

JURISDICTION : Equity

JUDGMENT OF : Campbell J

DECISION : Application to modify and partly extinguish easements dismissed

CATCHWORDS : REAL PROPERTY - easements - extinguishment and modification under s 89 (1) (c) Conveyancing Act 1919 - easements for recreational purposes - onus of proof of no substantial injury - meaning of "substantial" -types of effect of extinguishment or modification which count as an "injury" - whether s 89 (1) (c) looks at different types of effects of extinguishment or modification when applied to an easement, to those which can be looked at when s 89(1) (c) is applied to a restrictive covenant - whether court has jurisdiction to order that a modification or extinguishment take place by an instrument which obliterates existing easements and creates new ones which are in substance a modification and partial extinguishment of the old ones - effect of the existing easement being defeasible in certain circumstances - effect of only a small percentage of the existing easement being affected - effect of easements "protecting" the servient tenement by in practice making development of it which is inconsistent with the easement impossible

Conveyancing Act 1919 LEGISLATION CITED : Real Property Act 1900 Strata Schemes (Freehold Development) Act 1973

Durack v De Winton (1998) 9 BPR 16,403 In re Ellenborough Park [1956] Ch 131 Illawong Village Pty Ltd v State Bank of New South Wales [2004] NSWSC 18 In Re Lewis [1959] NZLR 1040 Loclot Pty Ltd v Pullen (2003) 56 NSWLR 592 CASES CITED : Manly Properties Pty Ltd v Castrisos & Others [1973] 2 NSWLR 420 Re Mason and the Conveyancing Act (1960) 78 WN (NSW) 925 Mogensen v Portuland Developments Pty Ltd (1983) NSW ConvR 55 116 Re Parimax (SA) Pty Ltd (1954) 72 WN (NSW) 386 Stannard v Issa [1987] 1 AC 175 Webster v Bradac (1993) 5 BPR 12,032