NSW Caselaw
Reported Decision : (2005) NSW ConvR 56-125
New South Wales Court of Appeal
CITATION: Ashoil Holdings Pty Ltd v Fassoulas [2005] NSWCA 80
HEARING DATE(S): 23 February 2005
JUDGMENT DATE: 30 March 2005
JUDGMENT OF: Handley JA at 1; Tobias JA at 7; Campbell AJA at 66
DECISION: Appeal dismissed with costs
CATCHWORDS: CONVEYANCING - Easements - Extinguishment of easements - Right of way - Abandonment - Whether right of way had been abandoned - Whether abandonment should be inferred from non-user, alternative access and/or obstruction - Establishing abandonment where title is under Real Property Act 1900 and easement appears on title - Whether court should have regard to acts or omissions of predecessors in title - Obsolescence - Whether right of way should be deemed obsolete by reason of change in character of neighbourhood and/or change in user of dominant tenement - Conveyancing Act 1919 s 89(1)(a), (b)
LEGISLATION CITED: Conveyancing Act 1919
Gotobed v Pridmore (1970) 115 SJ 78 Grill v Hockey (1991) 5 BPR 11,421 Treweeke v 36 Wolseley Road Pty Ltd (1973) 128 CLR 274 CASES CITED: Re Truman Handbury Buxton & Co Ltd's Application [1956] 1 QB 261 Re Mason and the Conveyancing Act (1960) 78 WN (NSW) 925 Durian (Holdings) Pty Ltd v Cavacourt Pty Ltd (2000) 10 BPR 18,099 Cavacourt Pty Limited v Durian (Holdings) Pty Limited (1998) 9 BPR 16,833
Ashoil Holdings Pty Athanasia Fassoulas PARTIES: Angela Fassoulas Arthur Fassoulas
FILE NUMBER(S): CA 40616/04
A: P Clay COUNSEL: R: J Whyte
A: Denes Ebner, Sydney SOLICITORS: R: Andresakis & Associates, Parramatta
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