Swann & Anor v Spiropoulos & Ors; Von der Heyde v Spiropoulos & Ors [2006] NSWSC 860

New South Wales Supreme Court

CITATION : Swann & Anor v Spiropoulos & Ors; Von der Heyde v Spiropoulos & Ors [2006] NSWSC 860

HEARING DATE(S) : 15/8/06 -17/8/06

JUDGMENT DATE : 17 August 2006

JURISDICTION : Equity

JUDGMENT OF : Campbell J

EX TEMPORE JUDGMENT DATE : 08/17/2006

DECISION : Easements to be granted with compensation.

CATCHWORDS : REAL PROPERTY – easements – grant of easement under section 88K Conveyancing Act 1919 – whether easement is "reasonably necessary for the effective use or development of land" – assessment of compensation – approach to assessment of compensation when valuation evidence inadequate

LEGISLATION CITED : Conveyancing Act 1919

117 York Street Pty Ltd v Proprietors of Strata Plan 16123 (1998) 43 NSWLR 504 Hanny v Lewis (1998) 9 BPR 16,205 CASES CITED : Khattar v Wiese [2005] NSWSC 1014 King v Carr-Gregg [2002] NSWSC 379 Mitchell v Boutagy (2001) 118 LGERA 249

Melinda Jane Swann - First Plaintiff (5723/04) PARTIES : Silvia Roberts - Second Plaintiff (5723/04) Victor Leonard von der Heyde - Plaintiff (6485/04) Sarah Louise Doherty - Third Defendant (5723/04 & 6485/04)

FILE NUMBER(S) : SC 5723/04; 6485/04

COUNSEL : C J Leggat SC - Plaintiffs

SOLICITORS : Pilke Pike & Fenwick - Plaintiffs Third Defendant appeared in person

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION EQUITY LIST

CAMPBELL J

THURSDAY 17 AUGUST 2006

6485/04 VICTOR LEONARD VON DER HEYDE v CONSTANTINOS SPIROPOULOS & ORS 5723/04 MELINDA JANE SWANN & ANOR v CONSTANTINOS SPIROPOULOS & ORS JUDGMENT – Ex Tempore 1 HIS HONOUR: This matter involves two applications under section 88K of the Conveyancing Act 1919 for two separate easements. The General Area 2 The property in question all lies within a valley which is approximately eight kilometres to the northwest of Mullumbimby. That valley is bounded to the west and south by high cliffs and to the north by a high ridge. The valley is open to the east. A creek, Maori Creek, runs along the foot of the valley roughly from west to east. A valuer has described the area as an area which offers considerable privacy due to the surrounds. Nearby development comprises predominantly lifestyle properties, hobby farms, grazing and horticultural properties. The Site of the Proposed Easements 3 As with many cases involving easements, the case cannot be properly understood without a map. This map is oriented with north at its top.