A document signed by parties containing the words 'in principle approval' and 'proposal', where further steps including surveys, preparation of instruments and obtaining mortgagee consent are contemplated, is unlikely to be found to constitute a binding contract. The question whether a mortgagee of the dominant tenement must consent to extinguishment of an easement under s 89(1)(b) of the Conveyancing Act 1919 (NSW) remains open, with conflicting views expressed by Mason P and Hodgson JA. Where an agreement for extinguishment of an easement is substantially unperformed, specific performance may be the more appropriate remedy than an order under s 89.
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