NSW Caselaw
New South Wales Supreme Court
CITATION : Bona Vista Properties Pty Ltd [2007] NSWSC 1278
HEARING DATE(S) : 29 October 2007
JUDGMENT DATE : 29 October 2007
JURISDICTION : Equity
JUDGMENT OF : Hamilton J
DECISION : Easement extinguished as obsolete.
CATCHWORDS : REAL PROPERTY [418] – Easements – Easements generally – Abandonment, suspension or extinguishment – Extinguishment – Obsolescence – Procedure on application to Court.
LEGISLATION CITED : Conveyancing Act 1919 s 89
Ash Oil Holdings Pty Ltd v Fasoulis [2005] NSWCA 80 Durian (Holdings) Pty Ltd v Cavacourt Pty Ltd [2000] NSWCA 28 CASES CITED : Re Mason and the Conveyancing Act [1962] NSWR 762 Webster v Bradac SCNSW 21 June 1993 unreported Neville and Ashe, Equity Proceedings with Precedents (New South Wales) 1981 [1024]
PARTIES : Bona Vista Properties Pty Ltd (P)
FILE NUMBER(S) : SC 4419/07
COUNSEL : F D Curtis (P)
SOLICITORS : Andrew Mutton (P)
IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION
HAMILTON J
MONDAY, 29 OCTOBER 2007
4419/07 BONA VISTA PROPERTIES PTY LTD JUDGMENT 1 HIS HONOUR: These proceedings arise from the changing use of land in the vicinity of Pitt Town near the Hawkesbury River. Pitt Town is one of the old agricultural settlements of the County of Cumberland. At the present time it is undergoing considerable expansion by the conversion of previously agricultural land for residential developments. Two of the pieces of land which are involved in that process are land which I shall call "the Fernadell land" and land which I shall call "the Bona Vista land". 2 Both the Fernadell land and the Bona Vista land are to the south of the Hawkesbury River. The Bona Vista land in general terms lies north of the Fernadell land. There is a considerable distance between the northern boundary of the Bona Vista land and the river. Until about 2000 there was a pipeline through which water was drawn from the Hawkesbury River for agricultural use on the Fernadell land. The immediate relevance of this to the present proceedings is that the water was drawn in a pipe through the Bona Vista land and that pipe lay in an easement, which had been granted under old system conveyancing by a deed dated 27 February 1946 and registered Book 2012 Number 887, which easement authorised the maintenance of the pipe in the Bona Vista land and the drawing of water through it. 3 The application is an application under s 89 of the Conveyancing Act 1919. The relevant portions of s 89 are as follows: " Power of Court to modify or extinguish easements, profits à prendre and certain covenants
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