Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2012] NSWCA 445

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2012] NSWCA 445 Hearing dates: 6, 7 and 10 August 2012 Decision date: 21 December 2012 Before: Bathurst CJ, Beazley JA, Meagher JA Decision: 1. Set aside orders 1, 2, 4, 5 and 7 of the orders made by the primary judge. 2 Release the respondent from the undertaking referred to in par [8] of the orders of the primary judge. 3 Direct the matter to be remitted to a judge or an associate judge of the Equity Division of the Court to be dealt with in accordance with pars [256]-[260] of this judgment. 4 Each party pay its costs of the appeal. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: REAL PROPERTY - easements - Conveyancing Act 1919 s 88K - preconditions to imposition - whether easement can be imposed subject to undertaking to extinguish it if certain future events do not occur - obligation to assess preconditions in s 88K in light of circumstances existing at time of hearing.

REAL PROPERTY - easements - Conveyancing Act 1919 s 88K - power to order conditional easements - obligation to impose conditions as term of order imposing easement.

REAL PROPERTY - easements - Conveyancing Act 1919 s 88K - preconditions to imposition - reasonable necessity - whether obligation to consider effect on servient tenement.