D & D Corak Investments Pty Ltd v Yiasemides [2006] NSWSC 1419

New South Wales Supreme Court

CITATION : D & D Corak Investments Pty Ltd v Yiasemides [2006] NSWSC 1419

HEARING DATE(S) : 11/12/06 JURISDICTION : Equity Division

JUDGMENT OF : Young CJ in Eq

EX TEMPORE JUDGMENT DATE : 12/11/2006

DECISION : Application for grant of easement refused at this stage. Plaintiff to pay defendants' costs of proceedings to date.

CATCHWORDS : REAL PROPERTY [250]- Grant of easement- Dry cleaners seek right of way from street to back yard- Past use of way by leave and licence- Whether easement is reasonably necessary- Substantial inconvenience to defendants- Application refused at this stage.

LEGISLATION CITED : Conveyancing Act 1919, s 88K

117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 (1998) 43 NSWLR 504 Hanny v Lewis (1998) 9 BPR 16,205 CASES CITED : Katakouzinos v Roufir Pty Ltd (1999) 9 BPR 17,303 Khattar v Wiese [2005] NSWSC 1014 Owners Strata Plan 13635 v Ryan [2006] NSWSC 221 Woodland v Manly Municipal Council (2003) 127 LGERA 120

D & D Corak Investments Pty Ltd (P) PARTIES : Andrew Yiasemides (D1) Kalliopi Yiasemides (D2)

FILE NUMBER(S) : SC 2433/06

COUNSEL : G A Moore (P) P O'Loughlin (D)

SOLICITORS : FeeneyLawyers (P) D C Chambers & Associates (D)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

YOUNG CJ in EQ

Monday 11 December 2006

2433/06 – D & D CORAK INVESTMENTS PTY LTD v YIASEMIDES JUDGMENT 1 HIS HONOUR: This is an application by the proprietor of No 271 Bay Street, Brighton Le Sands for the grant of an easement over land at 273 and 275 Bay Street under section 88K of the Conveyancing Act 1919. 2 The plaintiff's premises consist of a two storey building. The ground floor of the plaintiff's premises is split into three sections. The western section is a stairway for the upstairs portion, the principal section (the middle), is used as a dry cleaners shop currently leased to a Mr Kumar, and the eastern portion is currently vacant. The upstairs portion is leased for offices. The principal problem appears to be with respect to Mr Kumar's dry cleaning business. 3 Bay Street, Brighton Le Sands, is a main road between Rockdale and Botany Bay. It is a heavily trafficked thoroughfare and parking outside number 271 is restricted during business hours to half an hour. Mr Kumar says he needs rear access so that he can get deliveries of white spirit, which he says is necessary to dry clean delicate fabrics and leather clothing, and also needs rear access so that his machinery can be accessed for repair. He also needs it to provide proper fire exits, for taking out garbage and other purposes. 4 The subject premises are close to the intersection of Queens Road. As one goes east along Bay Street from number 271 one passes the front of 273 which is operated as a newsagent by Mr Henry To. The registered proprietors of 273 are the two defendants, Mr Andrew and Mrs Kalliopi Yiasemides. Number 275 is on the corner of Queens Road. The registered proprietor of this block is the first defendant. Number 275 is used as a service station, but at the rear, although facing Queen Roads, is a brick shop, which has been leased since 2003 to Bonanza Pressing and Dry Cleaning Services Pty Ltd, which, as its name suggests, also operates a dry cleaning business. 5 Further along Queens Road at the rear of the Bonanza shop is a right of way, 3.66 metres wide, which burdens number 275 in favour of number 273. The plaintiff seeks that that right of way be extended through number 273 to number 271, that is, seeks a grant of a right of way 3.66 metres wide at the rear of numbers 275 and 273 in favour of number 271. 6 I had a view of the premises this morning. The rear of 271 is a small backyard with grass. On the 269 Bay Street side there is a construction site and I am informed that a large block of home units is being erected there so that, whilst in the past there could have been some access to the rear of 271 from 269, that is no longer possible. 7 At the rear of 271 there is another block of home units fronting Queen Road and that does have a driveway which abuts the rear fences of 271, 273 and 275. I was informed that although the plaintiff had sought permission of the proprietors of that block to use that drive as a rear access, that request had been refused on the ground of safety to the children who were residents in that block of home units. That matter has not been pursued. I mention it, however, in case it needs to be considered whether there are alternative methods of access to number 271's rear yard than via the right of way that I mentioned earlier. 8 The plaintiff says that at all material times since at least 1982 up until November 2005 there was no impediment at all to it using the right of way. The defendants dispute this, but there is no doubt that there was considerable use of the right of way with the consent of the defendants or their predecessors in title for most of that time. 9 The evidence as to the degree of use is not entirely consistent, and this is understandable because people were not directing their mind to that particular matter and it is over a year since it ceased, but it would seem to me that the plaintiff and its predecessors did use the right of way relatively constantly. However, it is also clear that it did so by leave and licence and that there was a proposal by the plaintiff or its predecessor in title to buy a right of way and that was refused probably about 15 years ago and thereafter there has been leave and licence. 10 The case was set down as an expedited hearing for today and I have been greatly assisted by the submissions of Mr G A Moore for the plaintiff and Mr P O'Loughlin for the defendants. Section 88K of the Conveyancing Act provides as follows so far as is relevant: "(1) The Court may make an order imposing an easement over land if the easement is reasonably necessary for the effective use or development of other land that will have the benefit of the easement.