Gordon v Lever [2018] NSWCA 43

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Gordon v Lever [2018] NSWCA 43 Hearing dates: 14 February 2018 Decision date: 16 March 2018 Before: McColl JA at [1]; White JA at [2]; Sackville AJA at [3] Decision: 1. Grant the Applicants leave to appeal. 2. Direct the Applicants to file the amended notice of appeal within seven days. 3. Allow the appeal. 4. Set aside Orders 1, 2 and 4 made by the primary Judge on 24 November 2017. 5. Remit the proceedings to the primary Judge for determination consistent with these reasons for judgment. 6. Grant the Respondent an extension of time until 8 December 2017 to file a cross-summons seeking leave to cross-appeal. 7. Direct the Respondent to file the notice of cross-appeal within seven days. 8. Allow the cross-appeal. 9. Set aside Order 3 made by the primary Judge on 24 November 2017. 10. Note that Order 5 includes the question of the costs of the proceedings. 11. The Respondent pay 80 per cent of the Applicants' costs of the appeal, including the Applicants' costs of the application for leave to appeal. 12. The Applicants pay the Respondent's costs of the cross-appeal, including the costs of the application for leave to cross-appeal but excluding the costs of the application for an extension of time in which to file the summons seeking leave to cross-appeal. Catchwords: LAND LAW — Easements — Creation of easements — Creation by order of court — Court to have regard to impact of proposed easement upon servient tenement