KOCAGIL v CHEN [2012] NSWSC 1354

Supreme Court New South Wales

Medium Neutral Citation: KOCAGIL v CHEN [2012] NSWSC 1354 Hearing dates: 15/11/2012, 16/11/2012, 23/11/2012 Decision date: 23 November 2012 Jurisdiction: Equity Division Before: Lindsay J Decision: Orders (including notation of an inter partes agreement) made to give effect to a determination that the plaintiffs are entitled to grant of an easement under the Conveyancing Act 1919 (NSW), s 88K Catchwords: REAL PROPERTY - Easements - Conveyancing Act 1919 s 88K - orders. Legislation Cited: Conveyancing Act 1919 (NSW), ss 88K, 88BA Cases Cited: - Texts Cited: - Category: Principal judgment Parties: S Kocagil ZG Chen Representation: S Jacobs (P) Marando Solicitors (P) Raymond Lee & Co (D) File Number(s): 2011/00384878

Judgment - EX TEMPORE 1In proceedings commenced by summons on 2 December 2011, the plaintiffs apply for an order under s 88K of the Conveyancing Act 1919 (NSW), granting to them an easement to drain water for the benefit of their land (lot 9 in deposited plan 222057) over the land of the defendants (lot 1 in deposited plan 714395). Both parcels of land are used for residential purposes. To a relatively small extent, they back on to one another. 2The plaintiffs have approval from Parramatta City Council to develop their land for "dual occupation" purposes, provided that they obtain an easement of the type now sought. The Council's consent to that development was granted on 7 December 2010 and modified on 31 August 2011. 3The plaintiffs' application is for the grant of an easement in the same terms, and over the same area of the defendants' land, as an existing easement. The existing easement burdens the defendants' land (lot 1 in DP 714395) and benefits four consecutively joined lots in the same deposited plan (namely, lots 2, 3, 4 and 5 in DP 714395). It runs along the back fence of the defendants' land. A drainage pipe runs along the line of the easement. 4The plaintiffs' application is predicated upon a practical proposal to have a drainage pipe on their property tap into the existing easement at or near the point of intersection between the respective rear boundaries of their land and that of the defendants. The registered proprietors of the defendants' neighbouring properties (the owners of lots 2, 3, 4 and 5 in DP 714395) have been requested to give their consent to the plaintiffs' application. 5On or about 6 August 2012, they were also given written notice of the dates allocated by the Court for the hearing of the plaintiffs' application. Four neighbours (the registered proprietors of lots 4 and 5) have expressly granted their consent to the application. Two others (the registered proprietors of lot 3) have expressly advised the solicitor for the plaintiffs that they have no objection to the application. The remaining neighbours (the registered proprietors of lot 2) have simply accepted service of the plaintiffs' documentation without more than an acknowledgement of receipt. 6None of the neighbours appeared before the Court at the commencement of the hearing on 15 November 2012 or at the adjourned mention of the proceedings on 16 November 2012. There is no appearance by any of them before the Court today. 7The plaintiffs' application is supported by the evidence of an expert engineer. That evidence includes a statement to the effect that the existing easement is of greater theoretical, than practical, benefit to the defendants' neighbours because of the lie of the land; each of lots 2, 3, 4 and 5 slopes downwards towards their frontage by falls of approximately three to four metres. 8The defendants do not oppose the plaintiffs' application, but they have been reluctant to consent to it lest, by their consent, they might be criticised by their neighbours, the owners of lots 2, 3, 4 and 5. 9If the defendants ever had any exposure to risk of adverse action at the hands of aggrieved registered proprietors of those lots, that exposure has been substantially diminished, if not entirely eliminated, by the responses of those neighbours to these proceedings. 10None have sought to be heard in opposition to the application. Four have expressly recorded their consent. Two have expressly recorded an absence of objection. The remaining neighbours have maintained a silence which might, at least, pass for an absence of objection. 11Having protected themselves against complaints from their neighbours, the defendants have agreed with the plaintiffs upon the terms upon which they are to be paid compensation pursuant to s 88K and their costs. They have also agreed upon the terms upon which, in conjunction with the sought after easement, the plaintiffs are to give (pursuant to s 88BA of the Conveyancing Act) a positive covenant to maintain the drainage line associated with the easement. 12The proceedings have been adjourned to today to permit the parties to prepare documentation to give effect to that covenant. Before the adjournment of the proceedings on 15 November 2012, evidence adduced for the plaintiffs included evidence from their solicitor deposing to his dealings with officers of the Land Titles Office in relation to the drafting of the documentation necessary to give effect to any easement granted, or ordered to be granted, pursuant to s 88K. 13That evidence was to the effect that, because the plaintiffs are taking advantage of the existing easement, and, in effect, tapping into it, there is no need of a new plan identifying the course of the new easement, and a simple form, "Transfer Granting Easement", executed by the defendants will suffice. 14Having obtained a determination from the Court that the grant of an easement pursuant to s 88K is warranted, the defendants are prepared to submit to orders requiring them to give effect to that determination. 15I am satisfied that each of the matters required to be proved by the plaintiffs pursuant to s 88K(2) has been proven. Moreover, the parties have agreed upon the terms upon which an easement to drain water should be imposed over the defendants' land for the benefit of the plaintiffs' land. 16Their agreement includes a requirement that the plaintiffs' land be burdened by a covenant under s 88BA of the Conveyancing Act for the maintenance and repair of the easement ordered in favour of the plaintiffs. 17As a matter of conveyancing practicality, the parties envisage that both the easement and the covenant might best be created by the registration of memoranda of transfer. 18In those circumstances, having determined that the plaintiffs have established their case for the imposition of an easement, in my opinion the best means by which to give the Court's determination practical expression, is to note the agreement between the parties for registration on their title of the easement, and the related covenant, and to reserve liberty to apply to the Court, should further orders need to be made beyond an order for payment of s 88K compensation and costs. 19Accordingly, I make the following notations and orders: (1) Note the agreement between the parties that: (a) the defendants will execute in favour of the plaintiffs, a registrable instrument for the grant of an easement substantially in the terms of the document today marked for identification "A" in these proceedings. (b) the plaintiffs will execute a registrable instrument substantially in the terms of the document today marked for identification "B" for the purpose of imposing on their land, and in favour of the defendants' land, a positive covenant for maintenance and repair. (2) Order that the plaintiffs pay to the defendants the sum of $20,000 as compensation, referable to s 88K(2)(b) of the Conveyancing Act 1919, for creation of the easement to be imposed on the defendants' land pursuant to these proceedings. (3) Order that the plaintiffs pay the defendants' costs of these proceedings as agreed or assessed. (4) Reserve liberty to apply on three days' notice. 20Although the document marked for identification today as MFI "B" takes the form of a "Transfer Granting Easement", the intention of the parties is that an instrument to be executed by the parties as contemplated in the agreement noted in para 1 is to be a covenant, albeit a covenant forming an integral part of the arrangements made for creation of the easement to drain water. 21The documentation to be executed by the parties to give effect to their agreement is documentation designed to impose on the parties as registered proprietors and on their successors in title the substantive obligations connected with the grant of an easement to drain water and a corresponding covenant for maintenance and repair.