Gordon v Lever

(2018) 97 NSWLR 90; [2018] NSWCA 43

NSW Court of Appeal

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Interrogate

Catchwords

1. Land Law
2. › Easements
3. › Creation of easements
4. › Creation by order of court
5. › Conveyancing Act 1919 (NSW), s 88K
6. › Whether easement 'reasonably necessary' for effective use of dominant tenement
7. › Court to have regard to impact of proposed easement upon servient tenement
8. › Whether court must know terms of proposed easement before determining reasonable necessity
1. Land Law
2. › Easements
3. › Creation of easements
4. › Creation by order of court
5. › Terms and conditions of easement
6. › Requirement to specify nature and terms in order imposing easement
7. › Whether terms limiting times of use must be formulated with reasonable precision before order made
8. › Conveyancing Act 1919 (NSW), s 88K(3)
1. Declarations
2. › Finality requirement
3. › Whether primary judge in position to make declaration finally resolving issue
4. › No concept of interlocutory declaration
5. › Whether sufficient evidentiary foundation existed
1. Practice and Procedure
2. › Costs
3. › Statutory presumption that applicant pay costs
4. › Whether primary judge erred in ordering each party pay own costs without reference to statutory provision
5. › Conveyancing Act 1919 (NSW), s 88K(5)

Quick Take

A court cannot determine whether a proposed easement is 'reasonably necessary' under s 88K(1) of the Conveyancing Act 1919 (NSW) unless the terms of the easement, including any limitations on use, have been formulated with reasonable precision, because the impact on the servient tenement cannot otherwise be assessed.