71 YORK STREET SYDNEY

LAND LAW – easements – creation of easements by prescription – servient owners unknown – whether servient owners acquiesced in user – whether acquiescence a necessary element LAND LAW – easements – creation of easements by order of court – Conveyancing Act 1919 (NSW) s 88K – whether easements reasonably necessary – whether easements not inconsistent with the public interest – evaluative decision in which appellate courts should exercise restraint

CIVIL PROCEDURE – application to re-open hearing – where plaintiff’s evidence was found to be inadequate in primary judgment – where plaintiff seeks to correct inadequacy by adducing further evidence after reasons delivered –evidence could have been adduced earlier – application refused COSTS – where plaintiff substantially succeeded – no evidence from either party about costs breakdown - whether usual position under Conveyancing Act 1919 (NSW), s 88K(5) should apply to alternative claim – whether unreasonable conduct by defendant – overall costs order made

LAND LAW – easements – creation of easements – creation by prescription – long use of land from late 1880’s and from 1981 – whether doctrine of lost modern grant applies where identity of owners of land unknown from 1880s to 2008 – held that easement by prescription could still arise – use sufficiently open that a diligent owner would have been aware of it LAND LAW – easements – creation of easements – creation under statute – applications under s 88K Conveyancing Act 1919 (NSW) – easements for overhang and encroaching structures to remain and for repair and services considered reasonably necessary – where elements of first plaintiff’s heritage building intrude on to defendants’ land – compensation awarded under s 88K Conveyancing Act 1919 (NSW) – easements for drainage of sewerage and water and for light and air refused –– first plaintiff failed to establish easements for light and air were reasonably necessary LAND LAW – easements – creation of easements – creation by express grant or implication in old system deeds of conveyance – held that general words in 1871 deed created rights of way to benefit of landlocked plots over private lane where only access to public road via that lane – where rights of way no longer accommodate the second plaintiff’s land – held that second plaintiff does not have the benefit of any existing rights of way LAND LAW – easements — where owner of dominant tenement purported to transfer benefit of rights of way to other land – held that purported transfer invalid – held that easements are not ‘extended’ upon consolidation of landholdings