Ashoil Holdings Pty Ltd v Fassoulas

(2005) 12 BPR 98195; [2005] NSWCA 80

NSW Court of Appeal

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Interrogate

Catchwords

1. Conveyancing
2. › Easements
3. › Extinguishment of easements
4. › Right of way
5. › Abandonment
6. › Whether right of way had been abandoned
7. › Whether abandonment should be inferred from non-user, alternative access and obstruction
8. › Conveyancing Act 1919 (NSW), s 89(1)(b)
1. Conveyancing
2. › Easements
3. › Extinguishment of easements
4. › Right of way
5. › Obsolescence
6. › Whether right of way should be deemed obsolete by reason of change in character of neighbourhood or change in user of dominant tenement
7. › Conveyancing Act 1919 (NSW), s 89(1)(a)
1. Real Property
2. › Torrens title
3. › Easements appearing on certificate of title
4. › Whether acts or omissions of predecessors in title relevant to abandonment where dominant tenement under Real Property Act 1900 (NSW)
5. › Real Property Act 1900 (NSW)

Quick Take

The combination of non-user, alternative access, temporary obstruction, and an aborted development proposal is insufficient to establish abandonment of a right of way under s 89(1)(b) of the Conveyancing Act 1919 (NSW) where the obstruction explains the non-user and the development proposal was itself abandoned. An open question remains as to whether, where the dominant tenement is under the Real Property Act 1900, it is necessary to establish that the current registered proprietor (not merely predecessors in title) has abandoned the easement.