Kladis v Lowe [2016] NSWSC 1834

Supreme Court New South Wales

Medium Neutral Citation: Kladis v Lowe [2016] NSWSC 1834 Hearing dates: 14 November 2016 Date of orders: 16 December 2016 Decision date: 16 December 2016 Jurisdiction: Common Law Before: Beech-Jones J Decision: (1) On or before 20 January 2017 the plaintiff file and serve the proposed orders he contends are necessary to give effect to this judgment; (2) On or before 3 February 2017 the defendants file and serve any proposed orders they contend are necessary to give effect to this judgment; (3) The proceedings be listed on 10 February 2017 at 9.30am; and (4) There be liberty to apply on three days notice. Catchwords: EASEMENTS – plaintiff seeks order compelling defendants to approve development application to construct driveway – plaintiff's property has no vehicle access – plaintiff's property includes strip of land to street – plaintiff's property has right of carriageway over abutting strip owned by first defendant – land steep – proposed to construct elevated driveway – whether right of carriageway for vehicles capable of enjoyment – whether plaintiff can require second defendant to agree to permanent ingress to small portion of its land – whether plaintiff's proposed use unreasonably interferes with defendants' rights – whether conditional relief can be granted – plaintiff succeeds at least against first defendant – plaintiff to formulate proposed orders Legislation Cited: Conveyancing Act 1919 (NSW) Environmental and Planning Assessment Regulations 2000 (NSW) Evidence Act 1995 (NSW) Cases Cited: 117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 (1998) 43 NSWLR 504 Butler v Muddle (1995) BPR 97,532 Gallagher v Rainbow (1993) 179 CLR 624 Hemmes Hermitage Pty Ltd v Abdurahman (1991) 22 NSWLR 343 Jelbert v Davis [1968] 1 WLR 589 Kirkjian v Towers (Supreme Court (NSW), 6 July 1987, unreported) Saggers v Brown (1981) 2 BPR 9329 Sertari Pty Ltd v Nirimba Developments Pty Ltd [2007] NSWCA 324 Shelmerdine v Ringen Pty Ltd [1993] 1 VR 315 Zenere v Leate (1980) BPR 97,029 Category: Principal judgment Parties: Andrew Kladis (Plaintiff) Karen Lowe (First Defendant) Owners Corporation in Strata Plan 30459 (Second Defendant) Representation: Counsel: DE Grieve QC; Dr J Smith (Plaintiff) TGR Parker SC (Defendants)