Bernadette Mills v GM Amalgamated Investments (Dulwich Hill) Pty Ltd & Anor [2013] NSWSC 519

Supreme Court New South Wales

Medium Neutral Citation: Bernadette Mills v GM Amalgamated Investments (Dulwich Hill) Pty Ltd & Anor [2013] NSWSC 519 Hearing dates: 11.03.13, 12.03.13, 13,03.13, 14.03.13 Decision date: 09 May 2013 Before: Nicholas J Decision: Par 42 Catchwords: REAL PROPERTY - easements - easement to drain water under s 88B Conveyancing Act 1919 - condition to restore surface of servient tenement to original condition - grantee authorised excavation work on easement - whether backfilling of trench defective and cause of damage to servient tenement - whether grantee liable for breach of condition to restore Legislation Cited: Conveyancing Act 1919 Real Property Act 1900 Cases Cited: Fanigun Pty Ltd v Woolworths Ltd [2006] QSC 28; (2006) 2 Qd R 366 Rhone v Stephens [1994] 2 AC 310 Category: Principal judgment Parties: Bernadette Mills - plaintiff G M Amalgamated Investments (Dulwich Hill) Pty Ltd - first defendant JM Associated Investments (Dulwich Hill) Pty Ltd - second defendant Representation: Counsel: F Corsaro SC/G Niven - plaintiff S Golledge - defendants Solicitors: Mills Oakley - plaintiff Somerset Ryckmans - defendants File Number(s): 08/282076

Judgment 1The plaintiff is the proprietor of the land contained in folio identifier 2101/1030519 at St Helens (the plaintiff's lot). The defendants are the proprietors of the adjacent property being the land contained in folio identifier 2113/1030519 (the defendants' lot). The defendants' lot adjoins the plaintiff's land along its northern boundary. The defendants are the owners of the dominant tenement under an easement to drain water over a strip of the plaintiff's land along the common boundary. In these proceedings the plaintiff, as owner of the servient tenement, claims damages against the defendants for loss caused by subsidence resulting from defective work done in the course of replacing drainage pipes within the easement. 2The defendants dispute the claims. They deny that the condition of the servient tenement was caused by defective workmanship when the pipes were replaced. Liability is also denied on grounds that the work was carried out by an independent contractor, alternatively, that the proceedings were commenced outside the statutory six year limitation period.