Fincob Pty Ltd v Campbelltown City Council [2010] NSWSC 349

New South Wales Supreme Court

CITATION : Fincob Pty Ltd v Campbelltown City Council [2010] NSWSC 349

HEARING DATE(S) : 12 and 13 April 2010

JUDGMENT DATE : 14 April 2010

JURISDICTION : Equity

JUDGMENT OF : White J

EX TEMPORE JUDGMENT DATE : 14 April 2010

1. I note the undertakings of the plaintiff by its counsel to the Court and to the defendant (which I initial and date today and place with the papers) that the plaintiff will: a) do all things necessary to cause to be created and registered with the NSW Department of Lands a new easement to become part of easement F in the position depicted in purple on the plan ER01 (Rev P5) annexed to the further amended summons ("the Plan") and there called "Proposed Relocated Easement F 1222SQM" and on the terms identical to the terms of the easement "F" that is to be partially extinguished pursuant to the orders below. b) do all things necessary to cause to be created and registered with the NSW Department of Lands a new easement in the position depicted in orange on the Plan and there called "Proposed Relocated Easement G 955SQM" and on the terms identical to the terms of easement "G" to be extinguished pursuant to the orders below. c) cause to be widened and converted into a disabled car park space the car park space marked "Relocated Disabled Parking Space" on the Plan and cause to be created and registered with the NSW Department of Lands a new easement to become part of easement "M" over the car park space cross-hatched on the Plan and there called New Relocated Parking Space on the terms identical to the terms of easement M to be partially extinguished under the orders below. d) construct and complete the physical works required to be carried out within the proposed easements referred to in (a), (b) and (c): i) in accordance with the requirements of Campbelltown City Council (in its capacity as statutory consent authority) and any other relevant governmental authority; ii) with respect to the new easements referred to in paragraph (a) and (b), access roads within those easements must be constructed at least to the standards required under Council's Specification for Construction of Subdivisional Road and Drainage Works (as amended) and the Campbelltown (Sustainable) City DCP 2007 Volume 2. 2. Order that the new easements to be created pursuant to the undertakings noted in para 1(a), (b) and (c) not be lodged for registration until completion of the construction of the works to be carried out pursuant to the undertaking noted in para 1(d). DECISION : 3. Order that provided the new easements to be created pursuant to the plaintiff's undertakings noted in para 1(a), (b) and (c) are registered within three years, that upon the registration of such new easements: a) Easement "G" encumbering Lot 133 DP 1000304 and shown in green on the Plan be extinguished pursuant to s 89 of the Conveyancing Act 1919 (NSW). b) The part of easement "F" encumbering Lot 133 DP 1000304 and shown in yellow on the Plan be extinguished pursuant to s 89 of the Conveyancing Act 1919 (NSW). c) The part of easement "M" encumbering Lot 133 DP 1000304 which consists of the carpark space hatched in pink and orange on the Plan be extinguished pursuant to s 89 of the Conveyancing Act 1919 (NSW). 4. Liberty to apply on reasonable notice. 5. Exhibits may be returned after 28 days. 6. These orders may be entered forthwith. I note the undertakings of the plaintiff by its counsel to the court and to the defendant set out in para 1 in the document headed "Short Minutes of Order", which I initial, date today and place with the papers. 7. I make orders in accordance with paras 2, 3, 4 and 5 of those short minutes and I make a further order 6 that these orders may be entered forthwith. 8. I make no order as to costs of the proceedings, with the intent that each party bear its own costs. Without affecting the parties' liability for the remuneration of the single experts pursuant to r 31.45(2), those expenses are to be borne by the parties equally.