Kladis v Lowe (No 3) [2017] NSWSC 815

Supreme Court New South Wales

Medium Neutral Citation: Kladis v Lowe (No 3) [2017] NSWSC 815 Hearing dates: 16 June 2017 Date of orders: 23 June 2017 Decision date: 23 June 2017 Jurisdiction: Common Law Before: Beech-Jones J Decision: See [27] and [29] Catchwords: EASEMENTS – RELIEF – right of carriageway – form of relief – effect on other interests in same land Legislation Cited: Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Cases Cited: Kladis v Lowe [2016] NSWSC 1834 Kladis v Lowe [2017] NSWSC 249 Category: Procedural and other rulings Parties: Andrew Kladis (Plaintiff) Karen Lowe (First Defendant) Owners Corporation in Strata Plan 30459 (Second Defendant) Representation: Counsel: DE Grieve QC (Plaintiff) P Tomasetti SC (Defendants)

Solicitors: Hones Lawyers (Plaintiff) Mills Oakley (Defendants) File Number(s): 2014/172551

Judgment 1. This is another judgment concerning the form of orders necessary to give effect to the judgment in Kladis v Lowe [2016] NSWSC 1834 ("Kladis No 1"). It should be read together with Kladis No 1 and Kladis v Lowe [2017] NSWSC 249 ("Kladis No 2").

Background 1. The issue in this litigation is whether the plaintiff can require either or both of the defendants to execute a consent to a development application ("DA") for the construction of a driveway connecting the plaintiff's property at 26 Musgrave Street Mosman ("No 26") to Musgrave Street. As previously stated, it is not part of the Court's function to consider the effect on the amenity of the defendants' properties of the proposed driveway (Kladis No 1 at [36]). 2. The first defendant, Karen Lowe, is the proprietor of the property known as No 28 Musgrave Street ("No 28"). The second defendant, the Owners Corporation in Strata Plan 30459, is the proprietor of the common property of a strata plan for 30 Musgrave Street ("No 30"). A diagram of the properties and the relevant interests is set out in Kladis No 2 at [5]. 3. In Kladis No 1, I ordered the plaintiff to file and serve proposed orders to give effect to the findings in that judgment specifically the entitlement of the plaintiff to build a driveway over strip 1 and strip 2. However, in Kladis No 2, I rejected the orders proposed by the plaintiff. Instead, I ordered the plaintiff to file and serve "proposed orders identifying the precise form of development application that he contends that either or both of the defendants should execute" (Kladis No 2 at [47]).