Supreme Court New South Wales Medium Neutral Citation: George Laris v Chun Hung Lin [2015] NSWSC 473 Hearing dates: 24 April 2015 Date of orders: 24 April 2015 Decision date: 24 April 2015 Jurisdiction: Equity Division Before: Slattery J Decision: Plaintiff's claim dismissed. Cross-claim adjourned part heard to 25 June 2015. Catchwords: EASEMENTS – application to extinguish easements – where insufficient evidence provided of easements and alleged damage to found a claim in trespass – where dominant tenement forms part of an estate being administered in bankruptcy – notification of Official Trustee in Bankruptcy regarding proceedings. Legislation Cited: Conveyancing Act 1919, s 89 Category: Consequential orders (other than Costs) Parties: Plaintiff: George Laris Defendant/cross-claimant: Chun Hung Lin Representation: Solicitors: Plaintiff: n/a Defendant/cross-claimant: Robert Adrian Stoyef, File Number(s): 2013/304889 Publication restriction: No EX TEMPORE Judgment 1. Mr Chun Hung Lin owns a property in Croydon Road, in Croydon, close to the corner of Parramatta Road. In these proceedings in a cross-summons, he seeks the extinguishment of two easements which had been created over that property, in favour of another nearby property which abuts Parramatta Road. 2. Croydon Road runs in an approximately north-south direction at the front of Mr Lin's property, which is Lot 7 in DP 14354. Parramatta Road runs in an approximately east-west direction to the south of Lot 7, which lies only a short distance north of the north-western corner of Croydon Road and Parramatta Road ("the corner"). Between Lot 7 and the corner are properties which abut the northern side of Parramatta Road. These are Lots 1 - 6 in DP 14354. Lot 6 of DP 14354 abuts the western side of Croydon Road. Lot 1 in DP 743076 lie along Parramatta Road away from the corner in a westerly direction, immediately past the six properties of DP 14354. 3. In an easement created in 1927, Lots 1 to 6 each have rights of carriageway over the rear of those properties to allow access in an easterly direction towards Croydon Road for Lots 1 to 5 and ultimately over Lot 6, the lot closest to Croydon Road. Lot 7 also has rights of carriageway over Lots 1 to 6 in DP 14354. Lot 8 in DP 14354 also has rights of carriageway over Lot 7, and then in turn over Lots 1 to 6. But I am told by Mr Stoyef for the plaintiff that Lot 1 in DP 743076 does not have any rights of carriageway over Lots 1 to 6 in DP 14354. Lot 7 in DP 14354 and Lot 1 in DP 743076 were, until recent times, in common ownership of a Mr George Laris, the plaintiff in these proceedings. 4. Before the sale of Lot 7, Mr Laris appears to have created two easements, for the benefit of Lot 1 in DP 743076 and over Lot 7 in DP 14354, one in 1997 and one in 2010. Both easements give, so it is submitted, to Lot 1 in DP 743076 a right of carriageway over Lot 7, with the apparent intent that persons could then in turn take the benefit of Lot 7's easement over Lots 1 to 6 in DP 14354. If that is what the draftsperson of the easement actually had in mind, it may well be based upon a legal misconception. 5. Ordinarily, a person cannot tack himself or herself onto someone else's easement and then thereby get the benefit of another dominant tenement owner's easement over the servient tenement. Lot 1 in DP 743076 would have to negotiate its own easement over Lots 1 to 6 in DP 14354 to gain a complete right of carriageway east to Croydon Road. For that reason, it is necessary to scrutinise the easement documents in this case with precision, and that is where the problem starts in this case. 6. I am not satisfied on the evidence that I have seen so far that all the complete easement documents are actually before the Court. They have been presented in this case in an inconsistent way. Some documents have been tendered on their own, some documents are attached to the affidavits of the defendant/cross-claimant Mr Lin, and some have been attached to the affidavit of Mr Laris, the plaintiff, which affidavit was tendered as an exhibit in the cross-defendant's case. 7. Even brief perusal shows inconsistencies among the various forms of these documents in evidence. It is most important in applications such as this that the evidence be precise. But here it is not. 8. The procedural history of the matter may be shortly stated: Mr Laris initially brought proceedings by way of summons in October 2013, principally to prevent Mr Lin from obstructing Mr Laris' use of Lot 7, and thereby inhibiting Mr Laris from taking advantage of the easements appurtenant to Lot 7. Mr Lin then cross-claimed for extinguishment of the easements under Conveyancing Act 1919, s 89. The matter was listed for hearing before Nicholas J on 8 December 2014. 9. Four days before that appointed hearing, Mr Laris filed a debtor's petition. His affairs are now under the administration of the Official Trustee in Bankruptcy. But Mr Lin now pursues his cross-summons seeking extinguishment of both these easements. 10. Mr Lin also sought the removal of a fence which Mr Laris has erected over the rear of Mr Lin's property. Mr Laris appeared to seek to fence off the whole of the back of Mr Lin's property, so that Mr Laris or his tenants could use the area of the easement for car parking. Without finally deciding the matter, such use seems to go beyond the rights that would ordinarily be exercised by a dominant tenement holder. 11. The Court is disinclined to grant any relief today. The Court will decide to adjourn these proceedings until 25 June 2015, so that they can be put in proper order. 12. There are several reasons for this. It is fundamental in cases where orders are sought under Conveyancing Act, s 89, for the Court to have before it clear copies of all the relevant easements and deposited plans attested to on oath (or agreed) as being the result of searches from the Registrar General's Office or the Land Titles Office. That is not clear from the affidavit evidence that has been read in this case, as I have indicated. The affidavits should be set up in a logical sequence, so the Court can follow exactly which documents are in issue and what has happened. 13. In particular, the Court is not confident that it has the complete documentation for the 1997 and 2010 easements. So it is not clear that Lot 1 in DP 743076 does not claim some right of access under the easement over Lots 1 to 6 in DP 14354. From the materials that have been provided, it looks as though that is not the case. But the Court is not sure. 14. Another concern prompts the Court to require the delivery of further evidence before proceeding further and possibly to make orders. If the cross-claimant's contention is right and the easements simply give rights over Lot 7, they are easements based on somewhat of a misconception because they do not go anywhere. They simply go to the rear of Lot 7 and no further. 15. That would not be a right of carriageway as ordinarily understood and would indicate perhaps that the easement has been poorly drafted. But the Court will not readily draw the conclusion that the easement has been badly drafted and accepted by the Land Titles Office. Mr Laris' Proceedings 1. The matter is further complicated by the bankruptcy of Mr Laris. Mr Lin tenders some correspondence with the Trustee in Bankruptcy of Mr Laris, the Official Trustee ("the Trustee"), which shows the Trustee is prepared to discontinue Mr Laris' proceedings as plaintiff. I will make orders for them to be dsmissed today. 2. Mr Stoyef on behalf of Mr Lin asks for a costs order against the Trustee. As I will be directing a copy of these reasons to be provided to the Trustee before the matter goes any further, I will not make any costs orders today without the Trustee being informed that those orders are sought, and for him to be asked whether he has any objection to that course. 3. I am satisfied that both the Trustee and Mr Laris have been individually served with notice of the hearing today. But the difficulty is that the Trustee is probably in the course of seeking to realise Mr Laris' estate, including selling Lot 1 on DP 743076. 4. If the Court proceeds on the evidence in its current state and makes orders extinguishing this easement, and if it turns out that because of the incomplete state of the evidence, the Court has extinguished an easement which appears merely to be an easement over Lot 7 but which the Trustee, when he looks at the matter further, believes is really an easement over Lots 1 to 6 in DP 14354, then the Court will create a situation which will only generate later litigation, expense and inconvenience to the Trustee and possibly other parties. 5. It seems to me that a far better course is for the Trustee to be fully informed as to the issues in this proceeding, so that he can indicate to the Court what attitudes he wishes to take to them. For example, it would seem that if there is a right of access over Lots 1 to 6 in DP 14354 for the benefit of Lot 1 in DP 743076, then that is a potentially valuable right for the benefit of Lot 1 of DP 743076, and one which the Trustee may wish to both claim and advertise in the course of selling that lot. 6. On the other hand, if the Trustee does not assert that such a right of carriageway exists, that will make the Court's task considerably easier in this application. It would be of great assistance to the Court for it to hear from the Trustee about this, as well as about the issues of costs. Procedural Matters 1. There are a number of other matters. It is ordinarily expected in cases under Conveyancing Act, s 89 that the plaintiff will advance evidence of surrounding circumstances. It may well be that the cross-claimant in this case thought that the plaintiff would adduce such evidence. But Mr Laris has shown no interest in these proceedings since early December last year, when he became bankrupt. 2. What the Court would expect to see, if an application is to be further pursued under Conveyancing Act, s 89, is more evidence about the other easements in the area, the easements that Lot 8 has over Lot 7. Some evidence about the legal or practical accesses that are available to Lot 1 in DP 743076 would be expected if the Trustee does not consent to a grant of relief extinguishing the easement. I will give an opportunity for Mr Lin to produce that evidence. 3. As I have gained much information about this matter. All the relevant evidence has been read the most efficient course will be to continue dealing with it. I will therefore adjourn it part heard. It is a matter in which final orders can be made once the Court has properly heard the Trustee, and once any defects in the evidence have been rectified. 4. The plaintiff also claims damages for trespass. But Mr Lin has provided no clear particulars or calculations of those damages to the Court. It is not the function of the Court to work out from the cross-claimant's evidence what his claim for damages is. It is a matter for the cross-claimant to do a calculation, referenced to the evidence, so the Court can assess it. Again, I hope on the next occasion that that has been done. 5. Again, on the next occasion, another matter can be corrected. The Court was provided with a courtbook, but Mr Stoyef did not have his own copy. It was impossible for the Court efficiently to converse with Mr Stoyef in submissions about the documents to which he was referring. All affidavits, and the courtbook should be properly and fully paginated so the Court can conduct the proceedings expeditiously next time. 6. The orders and directions of the Court will be as follows: 1. Dismiss the plaintiff's claim against the defendant. 2. Reserve the question of costs as between the plaintiff and the defendant. 3. Direct the solicitor for the cross-claimant to serve a copy of these reasons on the Trustee in Bankruptcy by Tuesday 5 May 2015. 4. Adjourn these proceedings part heard to 25 June 2015. 5. The matter will be listed for directions at 9.30am Monday, 1 June 2015 for the purpose of ascertaining whether the Trustee in Bankruptcy wishes to take any part in these proceedings. 6. Direct the cross-claimant one week before the hearing on 25 June 2015 to provide to the Court: 1. evidence which sets out current searches of all the easements, the subject of these proceedings, verified as being the complete current searches from the Land Titles Office; 2. a proper paginated courtbook; and 3. such supplementary evidence as these reasons have indicated is necessary for this matter to proceed to final orders. ********** Amendments 01 May 2015 - paragraph 27, order 6 changed cross-defendant to cross-claimant. 08 May 2015 - duplication of catchwords in coversheet DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 May 2015