Shi v ABI-K Pty Ltd [2014] NSWCA 293

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Shi v ABI-K Pty Ltd [2014] NSWCA 293 Hearing dates: 15 August 2014 Decision date: 28 August 2014 Before: Basten JA at [1]; Barrett JA at [104]; Ward JA at [105] Decision: (1) Allow the appeal in part and set aside the orders made in the Equity Division on 5 May 2014 as varied on 8 May 2014. In lieu thereof, make the following orders:

1. (A) Order that there be imposed an easement to drain water 900 mm wide burdening Lot 4 in Deposited Plan 39083 known as 15 Blenheim Road, Carlingford in the State of New South Wales ("the servient tenement") and benefiting Lot 2A in Deposited Plan 161330 known as 50 Felton Road, Carlingford in the State of New South Wales ("the dominant tenement") as described in the dealing to be annexed hereto and marked "A".

(B) Direct that the easement so described – (a) run down the western boundary of the servient tenement; (b) have a width of 900mm, and (c) be limited to the soil and sub-soil of the area and not extend above the upper surface of the ground.

(C) Note that rights of access appurtenant to the easement do not extend to a height of more than 2.5 metres above the upper surface of the ground.

2. Direct the plaintiff to prepare annexure "A" and any accompanying documents to be executed by the defendant.

3. The defendant must execute a dealing in the form of annexure "A" and cause it to be returned to Madison Marcus Lawyers at Level 10, 1 Market Street, Sydney NSW or DX 13006 Sydney Market St, by 4.00pm seven days after the form and these orders have been personally served on the defendant.