NSW Caselaw
New South Wales Supreme Court
CITATION : Frasers Lorne Pty Ltd v Joyce Goldsworthy Burke & ors [2008] NSWSC 743
HEARING DATE(S) : 16 June 2008
JUDGMENT DATE : 18 July 2008
JURISDICTION : Equity Division Expedition List
JUDGMENT OF : Brereton J
DECISION : Summons dismissed with costs
CATCHWORDS : REAL PROPERTY – EASEMENTS – (NSW) Conveyancing Act 1919, s 89 – application for modification of easement – where plaintiff proposes to use its land for residential development – where plaintiff proposes modification of driveway easement enjoyed by dominant land to comply with Development Approval issued by local council – where proposed modification would nearly halve the width of the easement along half of its length – whether easement unmodified impedes the reasonable user of servient land – whether easement unmodified secures a practical benefit to the dominant land – whether modification of easement would not substantially injure the dominant owners – discretionary considerations – where modification was to facilitate commercial exploitation of servient land and plaintiff sought consent from dominant owners long after construction commenced and despite warnings from council.
LEGISLATION CITED : (NSW) Conveyancing Act 1919, s 89
CATEGORY : Principal judgment
Frasers Lorne Pty Ltd (plaintiff) PARTIES : Joyce Goldsworthy Burke (first plaintiff) Kim Huong Dinh (second defendant) Donald Keith Martin (third defendant)
FILE NUMBER(S) : SC 5065/07
COUNSEL : Mr T S Hale SC w Mr M A Izzo (plaintiff) Ms V Culkoff (defendants)
SOLICITORS : Holding Redlich (plaintiff) Steven Klinger (defendants)
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