Smith v Woodley-Beattie [2009] NSWSC 380

New South Wales Supreme Court

CITATION : Smith v Woodley-Beattie [2009] NSWSC 380

HEARING DATE(S) : 7 & 8 May 2009

JUDGMENT DATE : 11 May 2009

JUDGMENT OF : Smart AJ

DECISION : See paragraph 78

CATCHWORDS : Easements - section 88K of Conveyancing Act - satisfaction of sections 88K(1) & (2) - assessment of adequate compensation for loss or other disadvantage - grant of easement sought not likely to have same effect as to use as easement already granted to second defendant

LEGISLATION CITED : Conveyancing Act 1919 (NSW)

CATEGORY : Principal judgment

CASES CITED : Tregoyd Gardens Pty Ltd v Jervis NSWSC Eq (unreported, Hamilton J, 25 September 1997) BC 97688, 15,845

Peter Christey Smith & Robyn Lynette Smith (Plaintiffs) PARTIES : Jennifer Woodley-Beattie (First Defendant) Russell John Evans (Second Defendant)

FILE NUMBER(S) : SC 3569/06

AG Jamieson & AB Petrie (Plaintiffs) COUNSEL : AL Hill (First Defendant) EA White (Second Defendant)

Abigails (Plaintiffs) SOLICITORS : K Harrison (First Defendant) Delves & Wain (Second Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

Smart AJ

Monday 11 May 2009

3569/06 Peter Christey Smith & Robyn Lynette Smith v Jennifer Woodley-Beattie and Russell John Evans JUDGMENT 1 This action concerns some relatively remote rural land at Neringla near Araluen in the Shire of Eurobodalla. The closest public road is a council road known as Araluen Road. The Duea River is nearby. The plaintiffs are the joint registered proprietors of the property known as "Woolla", being Lots 87 and 122, DP 752150 and Peter Christey Smith is the sole registered proprietor of the adjoining Lot 3, DP 752140 (collectively referred to as the plaintiffs' lands). Ms Woodley-Beattie is the registered proprietor of Lot 16, DP 861498. Mr Evans is the registered proprietor of Lot 15, DP 861498. Lot 16 has an area of about 40 hectares, much of which appears to be quite rugged. Lot 16 is to the south of Lot 15 and the plaintiffs' lands are to the south of both Lots 16 and 15. Lot 15 is the dominant tenement of the right of carriageway registered in respect of Lot 16 as the servient tenement. The plaintiffs seek that they be granted an easement over such parts of Lot 16 as identified and highlighted in orange in the following plan for rights of carriageway and an order that the defendants do all things and execute all such documents as may be necessary to effect the registration of the easement so imposed.