Laris v Lin

Supreme Court of NSW|2015-10-12|Before: Slattery J

WN (NSW) 925 Re Roseblade; Re Foenander [1964-5] NSWR 2044 Swan v Sinclair [1925] AC 227 Treweeke v 36 Wolseley Road Pty Ltd (1973) 128 CLR 274 Trewin v Felton [2007] NSWSC 1370 Tujilo v Watts (2005) 12 BPR 23, 257 Webster v Bradac (1993) 5 BPR 12,032 Westfield Management Ltd v Perpetual Trustee Company Limited (2007) 233 CLR 528 Williams v State Transit Authority of NSW [2004] NSWCA 179 Williams v Usherwood (1983) 45 P & CR 235 Texts Cited: AJ Bradbrook and MA Neave, Easements and Restrictive Covenants In Australia (2nd ed 2000, Butterworths) Category: Principal judgment Parties: Plaintiff/cross-defendant: George Laris Defendant/cross-claimant: Chun Hung Lin Representation: Solicitors: Plaintiff/cross-defendant: n/a Defendant/cross-claimant: Robert Adrian Stoyef File Number(s): 2013/304889 Publication restriction: No

Judgment

The defendant/cross-claimant in these proceedings, Mr Chun Hung Lin owns a property in Croydon Road, in the Sydney suburb of Croydon, close to its intersection with Parramatta Road. By his cross-summons in these proceedings Mr Lin applies, pursuant to Conveyancing Act 1919, s 89, to extinguish or vary, two easements, which record rights of carriageway over the rear of his property, for the benefit of an adjacent property on Parramatta Road held by the plaintiff/cross-defendant Mr George Laris. His claim is contested.

Easements near Parramatta Road and Croydon Road - 1926 to 2016

The Creation of the disputed easements

In Sydney' Inner West, Croydon Road runs approximately north-south where it intersects with Parramatta Road, which at that point runs approximately east-west. The land on the south-eastern corner of this intersection was subdivided in 1926 into 8 lots. Six of them (Lots 1 to 6) were created so as to abut the southern side of Parramatta Road. They comprise the first six lots east of the intersection. The other two lots in the subdivision (Lots 7 and 8) face into Croydon Road and are situated down Croydon Road immediately to the south of the first six lots. Lots 7 and 8 are invisible to an observer in Parramatta Road looking at the six lots. Lot 7 is closer in Croydon Road to Parramatta Road than Lot 8. This 1926 subdivision was recorded in Deposited Plan ("DP") 14354.
The 1926 subdivision created what became some commercial lots and some residential lots. So far as can be ascertained from the form of the existing buildings on the land of the 1926 subdivision, Lots 1 to 6 have for a long time been used as shop or factory premises. But Lots 7 and 8 have for a long time had domestic residences erected on them.
In February 1927 an associated Dealing B472341 created a means of access by a right of carriageway for the benefit of Lot 7, across the rear of Lots 1 to 6. This February 1927 right of carriageway commences at the rear of Lot 7 and crosses the rear of each of Lots 1 to 6, and leads in a westerly direction onto Croydon Road.
Another right of carriageway was created at the same time (by Dealing B476301) for the benefit of Lot 8 over Lot 7 and then also over the same part of the rear of Lots 1 to 6 as was reserved by Dealing B472341 for the benefit of Lot 7.
These two rights of carriageway, which are 3 metres in width (and called together in these reasons "the 1927 rights of carriageway") cover an identical area over the rear of Lots 1 to 6. The location of the two easements for the respective benefit of Lot 7 and Lot 8 is conveniently shown in Figure 1 below.
Figure 1 is a reproduction of the most recent survey plan of the 1926 subdivision. Mr Laris engaged a surveyor, a Mr Gerard Junek to complete it. The easements marked "A", "B", and "C" are the 1927 rights of carriageway. The easement marked "D" appears to be an easement regulating rights of conveyancing among Lots 1 to 6.
In 1968 the plaintiff/cross-defendant, George Laris purchased land abutting the eastern boundary of Lot 1, the easternmost lot in DP14354. The land he purchased was not any part of DP14354. But it was Lot 1 in DP743076 ("the Laris land") which also has an address in Parramatta Road, and which is shown as the land at the foot of the diagram in Figure 1. At the time of this purchase in 1968, factory premises had already been constructed on the Laris land. A factory is still erected on the Laris land with its main pedestrian entrance facing onto Parramatta Road. This factory has no vehicular access directly onto Parramatta Road. There is only an aluminium and glass double doorway for foot traffic opening from the factory onto Parramatta Road. This gives customer access to the factory but does not allow for deliveries of any items except small or medium boxes.
There has never been an easement over the rear of Lots 1 to 6 in favour of the Laris land. Nothing is shown on the title to the Laris land to indicate it has the benefit of any such easement. The 1927 rights of carriageway over the rear of Lots 1 to 6 are for the benefit only of Lots 7 and 8 in DP14354. Mr Laris concedes this in his affidavit sworn on 5 February 2014 in these proceedings. He says, and I accept, that "the factory has no registered rights in its favour over the [rear of 6 lots of DP14354]. However, from the time that I purchased the factory in about 1968, I have used the [rear of the 6 lots of DP14354] to gain access to the factory, and also used it to gain access to land at the rear of the house [Lot 7] prior to the sale to the defendant [Mr Lin] between about 1975 to date".
In 1968 Mr Laris was a refrigeration mechanic. He operated a refrigeration manufacturing and repair business from the factory premises on the Laris land. He later expanded the business to include shop fitting and sheet metal businesses. He closed his businesses in 2002 and leased the Laris land to GTec Shopfitting Pty Limited ("GTec"), from 1 October 2009 to 30 September 2014. With the permission of GTec, Mr Laris occupied a small office on the mezzanine floor of the factory on the Laris land during its lease.
In 1975 Mr Laris also purchased Lot 7 in DP14354 (Lot 7). This gave him the convenience of a commercial frontage onto both Parramatta Road, from the Laris land, and another frontage onto Croydon Road, from the domestic residence constructed on Lot 7. But his sole lawful vehicular access onto Croydon Road was as the owner of Lot 7.
Both these properties remained in the common ownership of Mr Laris for 37 years, from 1975 to 2012. In March 2012 Mr Laris sold Lot 7 to the defendant/cross-claimant, Mr Chun Hung Lin.
But before that 2012 sale, and whilst the two properties were in the common ownership of Mr Laris, he caused two other easements, rights of carriageway, to be created over Lot 7 for the benefit of the Laris land: one in 1997 and the second in 2010. These are the two easements in dispute in these proceedings. Mr Lin now seeks to have both these easements extinguished or varied pursuant to Conveyancing Act 1919, s 89.
In 1997 Mr Laris created a right of carriageway ("the 1997 easement") for the benefit of the Laris land over both Lots 7 and 8. The right of carriageway so created was 3.05 metres wide and extended west into and over Lots 7 and 8, from the western boundary of those lots with the Laris land. The rear, or eastern end of Lot 7 abuts the western boundary of the Laris land over a distance of 10.05 metres. The 1997 easement extends along this full 10.05 metre boundary of Lot 7 with the Laris land. But it also extends some 3.625 metres along Lot 8's boundary with the Laris land.
Thus the right of carriageway created by the 1997 easement is a rectangular piece of land which is 13.675 metres (10.05 + 3.625) long by 3.05 metres wide. The 1997 easement is depicted in Figure 2 below. It appears to take advantage of the space generally occupied by Lot 8's 1927 right of carriageway over Lot 7 and Lots 1 to 6.
The 1997 easement was created pursuant to Conveyancing Act 1919, s 88B. An instrument setting out the terms of the easements and restrictions on the use of the land created by this s 88B instrument was registered on 7 February 1997 as DP266903, which showed the plan of the easement for the rights of carriageway depicted in Figure 2. The rights of carriageway were created by the s 88B instrument DP266903 over both Lots 7 and 8 in DP14354. DP266903 identified Mr Laris as the registered proprietor of the land benefited by DP266903. The identity of the first easement created in the instrument was a "Right of Carriageway 3.05 wide". The lot burdened was "Lot 8 in DP14354. The lot benefited was the Laris land, namely Lot 1 in DP743076.
Although Lot 8 was also burdened with a right of carriageway in DP266903 it is not part of the present application. Neither in Mr Laris' original summons nor in Mr Lin's cross summons was the recent proprietor of Lot 8 joined as a party to these proceedings. Nor indeed were the registered proprietors of Lots 1 to 6. But when DP266903 was registered Mr Laris was also the owner of Lot 8. He was thus able to consent to the s 88B instrument as the owner of that lot.
DP266903 also burdened Lot 7 with a right of carriageway. DP266903 identified the easement over Lot 7 as a "Right of Carriageway 3.05 wide and variable width". The schedule of lots affected by the s 88B instrument show that Lot 7 in DP 14354 was burdened and the Laris land (Lot 1 in DP743076) was benefited by the right of carriageway being created.
The use of the term "right of carriageway" in DP266903 imports the meaning of those words defined in the Conveyancing Act. Under the Conveyancing Act, s 88A(2) instruments that use the expression "Right of Carriageway" have the same effect as if there had been inserted therein the words set out in Conveyancing Act, Schedule 4A. Easements in gross are defined in Schedule 4A of the Conveyancing Act. Therein "Right of Carriageway" is defined as: "Full and free right for the body in whose favour this easement is created, and every person authorised by it, to go, pass and re-pass at all times and for all purposes with or without animals or vehicles or both over the land indicated herein as the servient tenement."
Nothing in the evidence suggests that the creation of the 1997 easements through the registration of DP266903 was anything other than entirely regular. It is not uncommon for such easements to be created in this way, when all the land involved is in common ownership, as it was here with Lots 7 and 8 and the Laris land all being owned by Mr Laris.
In 2010 Mr Laris created a second right of carriageway, but this time only over Lot 7 ("the 2010 easement"). The 2010 easement extended more deeply towards the west into the rear area of Lot 7 than the 1997 easement. Indeed the 2010 easement extended towards Croydon Road to a total depth of 13 metres into Lot 7 from its rear boundary with the Laris land. The use to which the area of this 2010 easement has been put will be examined below. The westernmost limit of the 2010 easement over Lot 7 was close to the point where the northern boundary of Lot 7 begins to abut Lot 2 of DP14354.
The 2010 easement is shown in Figure 3 below (marked A), covering as it does an area of 130.78m² (13 m c 10.06m) on Lot 7, and superimposed on the 1997 easement (marked B).
The 2010 easement was created by a Transfer Granting Easement, dealing number AF980059S registered under the Real Property Act. In that Transfer Granting Easement Mr Laris as transferor transferred a "Right of Carriageway 13m wide set out in Annexure A". George Laris was also described as the transferee. At the time of the 2010 easement Mr Laris indeed owned both the Laris land and Lot 7. The servient tenement was described in AF980059S as 7/14354 and the dominant tenement was described as 1/743076. The instrument is dated 14 July 2010 and the National Australia Bank consented to the dealing as mortgagee.

The Cross-Claim

The cross-claimant, Mr Lin seeks a range of relief including the extinguishing of both the 1997 and 2010 easements. The relief sought included supplementary injunctive relief and damages for trespass. The cross-summons sought the following orders: "1. An order pursuant to S. 89 (1) Conveyancing Act 1900 that the easement bearing land titles identifier number AF 980059 in respect of the land of plaintiff as dominant tenement and the defendant/cross-claimant as servient tenement be extinguished. 2 An order pursuant to S. 89 (1) Conveyancing Act 1900 that the easement bearing land titles identifier number DP266903 in respect of the land of plaintiff as dominant tenement and the defendant/cross-claimant as servient tenement be extinguished. 3 An order that the plaintiff's Summons is otherwise dismissed. 4. An order that the plaintiff by himself his servants, agents, invitees or licensees be restrained from damaging or removing or otherwise interfering with any fence, gate or post erected by the defendant/cross-claimant on, or on the boundary of the defendant/cross-claimant's land bearing land titles identifier number DP7/14354. 5 An order that the plaintiff by himself his servants, agents, invitees or licensees be restrained from parking any vehicles or placing any objects on the defendant/cross-claimant's land bearing land titles identifier number DP7/14354. 6. An order pursuant to s. 89 (3) Conveyancing Act 1900 declaring whether or not the land bearing land titles identifier number DP7/14354 is affected by an easement and the nature and extent thereof and whether the same is enforceable and by whom. 7. An order that the plaintiff/cross-defendant pay to the defendant/cross-claimant damages, including exemplary damages and punitive damages, as assessed by the court for the plaintiff/cross-defendant's trespasses against the defendant/cross-claimant. 8. Costs."
As earlier indicated, when these proceedings were commenced in October 2013 Mr Laris himself had sought relief in his summons to prevent the obstruction of the 1997 and 2010 easements. So prayers for relief 4 (restraint on removing fences or gates) and 5 (restraint from the parking of vehicles) are in substance the obverse of the relief that Mr Laris had sought in his now discontinued Summons.
In summary, the Cross Summons seeks in prayer 1, the extinguishment of the 1997 easement and in prayer 2 the extinguishment of the 2010 easement. Prayer 3 need no longer be pursued because the Summons was discontinued. Prayer 6 appears to be merely a claim for a declaration that Lot 7 is unaffected by the two easements that would follow automatically if the Court were to make orders in accordance with prayers 1 and 2, but not otherwise. It does not add anything to the substance of the relief sought.
It was agreed at the hearing that the 7th prayer for relief, the claim for damages including exemplary and punitive damages for trespass, would be determined separately from all other issues in the proceedings. This course was taken because the claim for trespass was in part dependent upon the outcome of the other claims for relief (in prayers 1 to 6). No issue of credit of any witness arose in relation to prayers for relief 1 to 6, as there was no cross-examination, on either side, in this first part of the hearing, so no potential problem with inconsistent credit findings in two parts of the hearing will arise.
The practical approach to the resolution of this litigation is to deal with the issue of extinguishment first. But the parties did not focus with great precision on what would happen in relation to prayers for relief 4 and 5. Mr Laris who appeared as a litigant in person was principally concerned to argue against the extinguishment of the 1997 and 2010 easements. He did not address in submissions what precise consequences would flow so far as erection of fencing was concerned in the event that he were to be successful and the easements were to continue to burden Lot 7.
The issue of the present right to the parking of vehicles can be made the subject of a declaration. But the issue of the damages consequences (if any) of the past parking of vehicles is closely connected with the trespass issues in prayer 7 and will be considered later with that issue.
There are contested issues about the past conduct of both parties here that have not yet been adequately addressed in relation to prayers for relief 5 and 7. For this reason, and so the parties can consider the Court's reasons in this judgment, the Court will not decide prayer for relief 5 and associated damages issues arising under prayer for relief 7. The question of trespass is closely connected with the issue of obstruction of the rights of carriageway. But the Court is prepared to make declarations about the fencing of part of Lot 7 as will be seen below. If the parties want the Court to resolve their disputes of fact about past parking on the right of carriageway and the past and present placing of obstructions on the right of carriageway as ancillary to their trespass dispute, then some cross-examination may be required at a later hearing.

How the Issues in Dispute Arose

Alleged changes in the use and ownership of the Laris land appear to have generated the present dispute between these parties.
As earlier indicated the whole of the rear boundary of Lot 7 adjoins the western boundary of the Laris land. But over quite a long period the various owners of Lots 1 to 6 in DP14354 seem to have acquiesced to the right of way over the rear of their properties being used for the benefit not just of Lot 7 and Lot 8 in accordance with the terms of the 1927 rights of carriageway, but also for the benefit of the Laris land. Mr Laris explains that this was the product of necessity for any owner of the Laris land. There is no parking for trucks on Parramatta Road at the entrance to the Laris land, making commercial deliveries to the Laris land from that direction virtually impossible. But the owners of Lots 1 to 6 seem to have been quite co-operative in solving this problem for the owner of the Laris land by allowing the easement over their properties which could lawfully be used only for the benefit of Lot 7 and Lot 8, also to be used informally for the benefit of the Laris land.
So established was this usage over Lots 1 to 6 for the benefit of the Laris land that a large roller door entrance was constructed right on the western boundary of the Laris land at the eastern end of, and facing west into, this assumed "right of way". Mr Laris says, and I accept, that he has used that door since 1968 for delivery of materials to the factory. Given that this was never a legally enforceable right of way, the informal use by Mr Laris of this means of access over the rear of Lots 1 to 6 will be called in these reasons, "the informal access over Lots 1 to 6".
Mr Laris says, and I accept, that because of the nature of the businesses that he conducted in the factory on the Laris land, large trucks were regularly required to deliver to the factory through that door. The photographs in evidence and the Court's own view of the site show that this roller door has been a long established part of the factory structure on the Laris land.
Mr Laris explained, and I accept, the historical problems that the 1997 and 2010 easements were designed to overcome. When trucks were using the right of way to deliver items to the factory on the Laris land, initially they had to drive down the laneway, unload and reverse out onto Croydon Road or alternatively to turn into Croydon Road, a busy suburban street, and back down the laneway. Mr Laris says, and I accept, that in many circumstances depending upon the size and type of delivery it was extremely difficult to unload the goods being delivered and get them into his factory, especially if they were required to come off the rear of the truck when the rear was facing Croydon Road and the front of the truck was pointing east towards the Laris land. Moreover, when a forklift was necessary to assist in unloading, which was reasonably often, because of the nature of the factory operations being conducted, there was insufficient room in the laneway beside the truck to bring the forklift past the trucks and through to the roller door entrance to the factory. One solution that emerged to overcome these problems was that quite often the load was taken off the truck by hand in individual parcels and taken into the factory. If that were not possible, then another solution was to unload and place the load next to the truck on the Parramatta Road side of the lane. Mr Laris would then wait until the delivery truck had left to reload the forklift with the delivered items and take them into the factory through the roller door on the Laris land.
But I infer from the photographic evidence in the proceedings that there was another motivation for the creation of the 1997 and 2010 easements. The photographic evidence shows that under the authority of the registered proprietor of the Laris land, the informal access over Lots 1 to 6 was being used for commercial vehicle to gain access to Lot 7 so that those vehicles could be parked there for the convenience of businesses operating out of the factory on the Laris land.
During the mid-1970s Mr Laris approached the previous owner of Lot 7 and asked to use the rear section of Lot 7 to assist in unloading. The then owner of Lot 7 gave Mr Laris general permission to use an area which is approximately the same size as the 1997 and 2010 easements currently over Lot 7 for this purpose. An older fence originally enclosed that rear area of Lot 7. There was no gate through which access could be gained into the rear area of Lot 7. So the then owner of Lot 7 allowed Mr Laris to remove the boundary fence entirely and use the rear area to unload, to have trucks turn on it, to store goods and to park vehicles, including delivery vans owned by Mr Laris as well as customers' or visitors' cars. Garbage disposal bins were also stored, picked up and delivered there. These various activities all occurred through informal arrangements between Mr Laris and the then owner of Lot 7. There was no easement in place at that time permitting any of these activities. But as with the Laris informal access over Lots 1 to 6, neighbourly co-operation overcame existing obstacles.
Mr Laris decided to purchase Lot 7 in 1975. He was then free to use the rear of Lot 7 to accommodate his business, as both the Laris land and Lot 7 were thenceforth in common ownership. Mr Laris laid concrete at the rear of Lot 7, over areas that later became the 1997 and 2010 easements which are depicted as areas "A" and "B" in Figure 3. Mr Laris laid the concrete to better enable trucks to unload and turn and to allow for the parking of vehicles, the placement of goods and the placement of waste bins for collection. And it was easier for forklifts to be operated over the concrete, which created a more stable platform for their travel when loaded.
Mr Laris says that loading, unloading, parking and vehicle movement activities occurred continuously from the time he came into ownership of Lot 7 until about March 2012, when he completed the sale of Lot 7 to Mr Lin. He says, and I accept, that according to his own observations his tenant GTec used the area in a similar fashion to the way he had used it.
But in 1997 and then in 2010 Mr Laris caused the two easements to be created. The second of them was created just before Mr Laris sold Lot 7 to Mr Lin. But the concreting and use of areas "A" and "B" in Figure 3 had long preceded the creation of the 1997 and 2010 easements.
The issues that led to these proceedings started in late 2012, not very long after Mr Lin's purchase of Lot 7. Mr Lin began to make complaints about Mr Laris and his tenants' use of the rear area of Lot 7. Officers of GTec also informed Mr Laris that Mr Lin was complaining directly to them. In January 2013 solicitors' correspondence commenced that ultimately led to these proceedings. It is not necessary to detail this correspondence further in these reasons.

Procedural History of this Action

On 10 October 2013, Mr Laris commenced these proceedings by summons, seeking to prevent Mr Lin from obstructing his use of Lot 7 and thereby inhibiting Mr Laris from taking advantage of the easements appurtenant to Lot 7. A month later, on 4 November 2013, Mr Lin filed his cross-summons for extinguishment of the easements under Conveyancing Act 1919, s 89. The matter was listed for hearing before Nicholas J on 8 December 2014.
However, 4 December 2014, four days before the scheduled hearing, Mr Laris filed a debtor's petition pursuant to Bankruptcy Act 1966, s 55. Upon his bankruptcy his affairs came under the administration of the Official Trustee in Bankruptcy ("the Official Trustee"). His bankruptcy had the effect of staying his proceedings on the Summons: Bankruptcy Act, s 60(2).
Bankruptcy Act, ss 60(2) and (3) provide as follows: "(2) An action commenced by a person who subsequently becomes a bankrupt is, upon his or her becoming a bankrupt, stayed until the trustee makes election, in writing, to prosecute or discontinue the action. (3) If the trustee does not make such an election within 28 days after notice of the action is served upon him or her by a defendant or other party to the action, he or she shall be deemed to have abandoned the action."
Mr Lin's solicitor wrote to the Official Trustee on 9 December and 12 December 2014, and 2 January 2015, providing information regarding the proceedings against Mr Laris. The 9 December 2014 letter was expressed to be "a notice of the action" pursuant to Bankruptcy Act, s 60(3). The Official Trustee made no election either to prosecute or discontinue the action within 28 days after Mr Lin had served him with notice of the action on 9 December 2014. So, by automatic operation of s 60(3), the Official Trustee was deemed to have abandoned the action on 6 January 2015. But in any case on 30 January 2015 the Official Trustee wrote to Mr Lin's solicitor and stated that it had "decided to discontinue the proceedings". This in substance seems to have been a decision under s 60(2) of the Bankruptcy Act, although the Official Trustee did not issue a formal notice of discontinuance.
On 24 April 2015 Mr Stoyef appeared for Mr Lin to present his client's cross-summons. In the first judgment given on that day, the Court formally dismissed Mr Laris's summons against Mr Lin, but adjourned the proceedings, so that it could be ascertained whether the Official Trustee wished to take any part in the defence of the balance of the proceedings and so that Mr Stoyef could provide the Court with any necessary further evidence.
Despite the bankruptcy of Mr Laris, the cross-claim could continue. The cross-claim sought relief of two principal kinds. It sought relief extinguishing the easements appurtenant to the Laris land. It also sought damages against Mr Laris for alleged trespass to Mr Lin's land. Neither of these actions is in respect of a debt provable in Mr Laris's bankruptcy. Neither form of relief is stayed by Mr Laris' bankruptcy.
If granted, the Conveyancing Act s 89 relief could potentially affect the value of the Laris land. But the Laris land is not presently the subject of administration within Mr Laris's is bankruptcy. The National Australia Bank ("NAB") holds registered first mortgage security over the Laris land. Despite the stays upon creditor action against the property of the bankrupt effected by Bankruptcy Act s 58(3), that section does not affect the right of a secured creditor to realise or otherwise deal with the creditor's security: Bankruptcy Act s 58 (5). Were the NAB at some stage in the future to sell the Laris land and realise a surplus, that surplus may be administered by the Official Trustee within Mr Laris's bankruptcy. But for the present the party with the first interest in the Conveyancing Act s 89 relief being sought on the cross claim is the NAB. It is for this reason, as will be seen below, the Court required that Mr Lin give noticed of the cross claim to the NAB and join it is a second cross-defendant.
Mr Lin's action for trespass to land is not a debt provable in Mr Laris's bankruptcy. Under Bankruptcy Act s82 (2) demands in the nature of unliquidated damages "arising otherwise than by reason of a contract, promise or breach of trust are not provable in bankruptcy". And the prohibition in the Bankruptcy Act on the enforcement of remedies against the property of the bankrupt only applies in respect of provable debts: Bankruptcy Act section 58 (3). An unliquidated claim for damages for the tort of trespass is not provable in bankruptcy, unless judgment for a specific amount has been entered prior to the bankruptcy, which is not the case here.
On 1 June 2015 Mr Stoyef informed the Court that the Official Trustee, having been served with all relevant documents, had confirmed that it did not wish to take any part in the proceedings. However the Court raised with Mr Stoyef its concern that the NAB, Mr Laris' secured creditor and the mortgagee of the Laris land, may also have an interest in the proceedings. The Court pointed out to Mr Stoyef that the NAB's rights as a secured creditor were not governed by Mr Laris' bankruptcy and that the NAB may wish to be heard on the question of whether easements benefiting the land over which the NAB held its mortgage security should be extinguished. Mr Stoyef indicated to the Court that he intended to join the NAB to the proceedings as a second cross-defendant.
On 5 June 2015 Mr Lin moved by motion to join the NAB as a second cross-defendant and the Court made orders joining the NAB as the second cross-defendant to the proceedings.
On 30 July 2015 the Court held a further directions hearing in the matter. Ms Lardner appeared for the NAB. She informed the Court that the bank had considered expert valuation advice as to the impact that the easements' extinguishment would have on the property it held as security, but that the bank had not yet provided instructions as to the position it would take in the proceedings. The Court therefore adjourned the matter to 19 August 2015.
The NAB decided not to take part in the proceedings. On 18 August 2015 the Court made orders in chambers, with the NAB and Mr Lin's consent, ordering that the cross-claim be dismissed as against the NAB, with no order as to costs, and noting Mr Lin's solicitor's undertaking that he would notify the NAB of any orders made in the proceeding within 48 hours of the orders being entered.
On 19 August 2015, and somewhat unexpectedly, Mr Laris appeared for the first time in the proceedings. He appeared without legal representation. Mr Laris submitted that day that he had a lawyer who would be in contact with Mr Lin's solicitor. So the Court allowed a short further adjournment until 9 September 2015 to allow any communications to occur between the solicitors. The Court also ordered Mr Laris to serve on Mr Lin's solicitor, Mr Stoyef, by 5pm on 2 September 2015 such evidence upon which he proposed to rely to oppose the orders sought in the cross-summons for the extinguishment of the 1997 and 2010 easements.
The Court permitted this in part because in the absence of the Official Trustee or the NAB committing to put a defence case in the proceedings, it was convenient to allow Mr Laris to appear and to advance a defence case. The Court was thereby better placed to give effect to the overriding purpose of the Civil Procedure Act 2005, to facilitate the just, quick and cheap resolution of the real issues in the proceedings. It was far better to hear from Mr Laris himself, than to speculate what might be put on behalf of the registered proprietor of the Laris land: Civil Procedure Act s56.
On 9 September, Mr Laris appeared again before the Court but without having filed any evidence or submissions. He submitted that he had not had sufficient time to file such documents, and that he lacked the financial means to pay lawyers to assist him. The Court refused to grant Mr Laris general liberty to file further evidence. Instead, it granted liberty to Mr Laris to file a motion returnable on 12 October 2015 at 9.30am seeking leave to adduce clearly identified evidence in his case. The Court foreshadowed that once that evidence was identified and read that the Court would hear final submissions and reserve judgment. But the Court ordered that any such evidence that Mr Laris proposed to adduce must all be served with his motion, and such motion should be served no later than 6 October 2015, so that Mr Lin would have a proper opportunity to consider it before the adjourned date of 12 October.
On 12 October 2015 Mr Laris again appeared before the Court. He sought to tender a green folder containing various documents that he claimed were relevant to his case. Despite the Court's doubts as to the relevance of much of the material in this green folder, it became Exhibit E in the proceedings. The Court then reserved its decision on prayers for relief 1 to 6 in the cross-summons. The Court further noted that it would reserve for later consideration the issue of trespass raised by the 7th prayer for relief.
Subsequently, the Court decided of its own motion to hold a view at the relevant properties in order to better acquaint itself with the geography of the lots and easements. On the morning of 26 November 2015, my tipstaff and I attended the relevant properties. Present at the same time at the view were Mr Lin, Mr Stoyef and Mr Laris. A number of other persons were present. The lease of the Laris land had ceased on 30 September 2014. By the time of the view in November 2015, the factory lay vacant.
With this background it is necessary to consider the applicable principles of law and to apply these principles to the facts of this case.

Applicable Principles of Law

The principles that apply to the exercise of the power conferred by Conveyancing Act s 89(1) to modify or extinguish an easement may be clearly stated. The power conferred in Conveyancing Act s 89(1) creates an important statutory qualification to the common law rights of the owner of an easement. Section 89(1) relevantly provides: "89 Power of Court to modify or extinguish easements, profits à prendre and certain covenants (1) Where land is subject to an easement or a profit à prendre or to a restriction or an obligation arising under covenant or otherwise as to the user thereof, the Court may from time to time, on the application of any person interested in the land, by order modify or wholly or partially extinguish the easement, profit à prendre, restriction or obligation upon being satisfied: (a) that by reason of change in the user of any land having the benefit of the easement, profit à prendre, restriction or obligation, or in the character of the neighbourhood or other circumstances of the case which the Court may deem material, the easement, profit à prendre, restriction or obligation ought to be deemed obsolete, or that the continued existence thereof would impede the reasonable user of the land subject to the easement, profit à prendre, restriction or obligation without securing practical benefit to the persons entitled to the easement or profit à prendre or to the benefit of the restriction or obligation, or would, unless modified, so impede such user, or (b) that the persons of the age of eighteen years or upwards and of full capacity for the time being or from time to time entitled to the easement or profit à prendre or to the benefit of the restriction, whether in respect of estates in fee simple or any lesser estates or interests in the land to which the easement, the profit à prendre or the benefit of the restriction is annexed, have agreed to the easement, profit à prendre, restriction or obligation being modified or wholly or partially extinguished, or by their acts or omissions may reasonably be considered to have abandoned the easement or profit à prendre wholly or in part or waived the benefit of the restriction wholly or in part, (b1) in the case of an obligation: (i) that the prescribed authority entitled to the benefit of the obligation has agreed to the obligation's being modified or wholly or partially extinguished or by its acts or omissions may reasonably be considered to have waived the benefit of the obligation wholly or in part, or (ii) that the obligation has become unreasonably expensive or unreasonably onerous to perform when compared with the benefit of its performance to the authority, or (c) that the proposed modification or extinguishment will not substantially injure the persons entitled to the easement or profit à prendre, or to the benefit of the restriction or obligation."
Conveyancing Act s 89(1) is to be applied according to its terms, read fairly and without disregarding the conventional approach to legislation affecting common law property rights. The starting point for the Court's consideration is the easement itself, its terms and its objects derived from construing those terms in context and bearing in mind that the easement was created for an indefinite future and destined to endure in a changing environment: Armishaw v Denby Horton (NZ) Ltd [1984] 1 NZLR 44 at [47]; Durian (Holdings) Pty Ltd v Cavacourt Pty Ltd (2000) 10 BPR 18, 099; [2000] NSWCA 28 per Mason P at [4].
The power to modify or extinguish an easement conferred by s 89 (1) requires proof of one or more circumstances to the satisfaction of the Court coupled with the favourable exercise of judicial discretion: Durian (Holdings) Pty Ltd v Cavacourt Pty Ltd (2000) 10 BPR 18, 099; [2000] NSWCA 28 per Mason P at [2]. The circumstances required to be proved are set out in Conveyancing Act s 89(1).

Extinguishment Pursuant to s 89(1)(a)

Conveyancing Act s 89(1)(a) grounds the exercise of the power to extinguish an easement on two independent bases connected with changing circumstances. The first basis is that by reason of the change in use of the land having the benefit of the easement or in the character of the neighbourhood, the easement ought to be deemed obsolete. The second is that the continued existence of the easement would impede the reasonable user of the land subject to the easement without securing any practical benefit to the persons entitled to the easement.
In relation to the first basis, to determine whether there has been a change in the neighbourhood, the Court identifies what the neighbourhood is in any given case and then analyses the evidence to see if there has been change between the date of grant and the date of the application: Cavacourt Pty Ltd v Durian (Holdings) Pty Ltd (1998) 9 BPR 16,833; [2000] ANZ ConvR 22; (1999) NSW ConvR 55-891 per Young J.
The term "obsolete" has been explained in a number of authorities. Indeed obsolescence: 1. can be established in the sense that the original purpose of the easement can no longer be served: In re Truman, Hanbury, Buxton & Company Ltd's Application [1956] 1 QB 261 at [272]; and 2. can also mean that the object of the easement is incapable of fulfilment any longer or perhaps serves no presently useful purpose: Re Mason and the Conveyancing Act (1960) 78 WN (NSW) 925 at [927]; Durian (Holdings) Pty Ltd v Cavacourt Pty Ltd (2000) 10 BPR 18,099; [2000] NSWCA 28 at [3]-[6].
The second basis involves an assessment of whether or not the continued existence of the easement would impede the reasonable user of the servient tenement without securing practical benefit to the persons entitled.
To establish that a covenant impedes the reasonable user of the servient land, it must be shown that no reasonable use of the land is possible unless the easement is modified or extinguished: Frasers Lorne Pty Ltd v Joyce Goldsworthy Burke & Ors [2008] NSWSC 743 per Brereton J at [14].
It is insufficient for a Conveyancing Act s 89(1) applicant to establish that its own proposal is a reasonable use of the servient land. The applicant must show that no reasonable use of the land is possible unless the easement is extinguished or modified: Heaton v Loblay (1959) 60 SR (NSW) 332, at 335 per Myers J. The applicant must also show that the continuance of the easement unmodified "hinders, to a real and sensible degree, the land being reasonably used, having due regard to the situation it occupies, to the surrounding property, and the purpose of the [easement]": Re Ghey & Galton's Application [1957] 2 QB 650 at 663. The question as to whether the continued existence of the right of way secures a practical benefit to the beneficiaries is one that does not require extensive analysis. But what is a "practical benefit" is capable of ready assessment.
Finally, Conveyancing Act s 89(1)(a) allows the Court to take into account such "other circumstances of the case which the Court may deem material". These words permit the Court to take into account "the widest field of evidentiary material": Re Roseblade; Re Foenander [1964-5] NSWR 2044 at [2046] and Markos v O R Autor Pty Ltd [2007] NSWSC 810 per Austin J at [90].

Extinguishment Pursuant to s 89 (1)(b) - Abandonment

Rights of way created by registered easements over Torrens system land can be abandoned so as to attract the jurisdiction of the Court under Conveyancing Act s 89(1): Grill v Hockey (1991) 5 BPR 11,421; Chiu v Healey (2003) 11 BPR 21,241; (2003) NSWSC 857 at [36]; AJ Bradbrook and MA Neave, Easements and Restrictive Covenants In Australia (2nd ed 2000, Butterworths) at [19.27] and following. Conveyancing Act s 89 is applicable to land under the Real Property Act 1900: Conveyancing Act s 89(8). The mere circumstance that an easement was noted on the register when land under the Real Property Act passed to a new registered proprietor would not furnish a reason for refusing as a matter of discretion to make an order under s 89(1) or s 89(3): Treweeke v 36 Wolseley Road Pty Ltd (1973) 128 CLR 274. The relevant principles in relation to abandonment of easements in relation to the exercise of Conveyancing Act s 89 jurisdiction are the following: 1. abandonment occurs both at common law and under the Conveyancing Act when the dominant owner has made it clear that neither he nor his successors in title will make any use of the easement, though it is not to be lightly inferred: Grill v Hockey (1991) 5 BPR 11,421 and Williams v Usherwood (1983) 45 P & CR 235, 256; 2. one must look for evidence that there has been an implied or lost modern deed of release of the easement - long non-use would be good evidence but would not necessarily be sufficient to establish abandonment: Swan v Sinclair [1925] AC 227, Treweeke v 36 Wolseley Road Pty Ltd (1973) 128 CLR 274 and Proprietor of Strata Plan No 9,968 v Proprietors of Strata Plan No 11,173 [1979] 2 NSWLR 605; and, 3. the longer the period of non-use the more readily the conclusion will be reached that the beneficiaries of the rights of way may be deemed to have abandoned it: Treweeke v 36 Wolseley Road Pty Ltd (1973) 128 CLR 274, per Walsh J at 288.

s 89(1)(c) - Lack of Substantial Injury to Beneficiaries

The power to extinguish an easement is also conferred by Conveyancing Act s 89(1) on the basis that the proposed modification or extinguishment will not substantially injure the persons entitled to the easement. The cross-claimant claims that the Court can exercise the power to extinguish in the present case based upon this ground. As with the other heads of power to extinguish, judicial exposition has assisted in explaining how this power should be exercised. The relevant principles in relation to Conveyancing Act s 89(1)(c), are the following: 1. a "substantial injury" is one that has real and present substance but need not be large or considerable: Re Mason and the Conveyancing Act (1961) 78 WN (NSW) 925 & (1962) NSWR 762 and Tujilo v Watts (2005) 12 BPR 23, 257, especially at [37]; Frasers Lorne Pty Ltd v Joyce Goldsworthy Burke & Ors (2008) 14 BPR 26,131 at [24]; 2. a wide variety of tangible and intangible potential injuries are encompassed by the expression "substantial injury" in s 89(1)(c): Webster v Bradac (1993) 5 BPR 12,032; Frasers Lorne Pty Ltd v Joyce Goldsworthy Burke & Ors (2008) 14 BPR 26,131 at [27]; and 3. there must be an injury of "real and present substance" and examples of how the statutory language has been applied with this concept in mind are usefully summarised by Young CJ in Eq, (as His Honour then was) in Castagna v Great Wall Resources Pty Ltd (2005) 12 BPR 23,363 at [42]-[43].

The Exercise of the Conveyancing Act s 89(1) Discretion

The grant of relief under established s 89 grounds is discretionary: Pieper v Edwards [1982] 1 NSWLR 336. The facts relevant to the exercise of this discretion include matters such as the history of the property, the conduct of the owners of both the dominant and servient tenements, the acts of a prior registered proprietor and the state of the register. No one factor is decisive: Pieper v Edwards (1982) 1 NSWLR 336 at 340D-E.
The question of who has the burden of showing that the discretion ought to be exercised once jurisdiction is established will itself depend upon the circumstances. This is explained by Hutley JA in Pieper v Edwards (1982) 1 NSWLR 336 at 340 as follows: "the burden may not always be on one side or the other. Where the acts of abandonment relied on are those of the dominant owner the burden of showing the order should not be made could reasonably be laid on him. Whereas here, the acts relied on are of a predecessor in title of the applicant, of which the respondent had no notice, the burden could well be thrown on the applicant."
The owner of the servient tenement has the burden of showing that the discretion ought be exercised in its favour.
The Court will normally exercise caution in acceding to an application for the extinguishment or modification of an easement, which is a proprietary right: Frasers Lorne Pty Ltd v Joyce Goldsworthy Burke & Ors [2008] NSWSC 743 per Brereton J at [29].

Perceptions contrast with legal reality - the 1997 and 2010 easements

The case that Mr Laris presented to defend the retention of the 1997 and 2010 easements did not correspond with the true legal rights conferred upon the dominant tenement owner of the Laris land. For reasons that will be elaborated below, despite the lack of correspondence, there are nevertheless good reasons why in the exercise of the Court's discretion under Conveyancing Act s 89, the 1997 and 2010 easements should not be extinguished. But first it is necessary to clear up some misconceptions about these two easements that emerged from the parties' submissions.
As a litigant in person Mr Laris put limited legal arguments to resist the relief sought against him. But he did have some legal assistance in drafting affidavits and was able quite effectively to articulate reasons for resisting Mr Lin's cross-claim. In substance his case was that these two easements were necessary to facilitate: (1) vehicles taking the benefit of the informal access from Croydon Road over Lots 1 to 6 and then parking on Lot 7 as an adjunct to the occupation of the Laris land; and (2) trucks unloading whilst using the informal access over Lots 1 to 6 to deliver materials into and from the factory on the Laris land.
But there appear to be several unsubstantiated legal assumptions behind Mr Laris's contentions. It is somewhat surprising but unexplained in the evidence why these misconceptions were not addressed at the time of creating the 1997 and 2010 easements
His assumptions relate to the following subjects. 1. Parking on Lot 7. 2. The informal access is not enforceable. 3. The Laris land cannot use Lot 7's easements. 4. Laris land is the only access to Lot 7.
The correct legal position in relation to each of these assumptions is set out before an analysis of Mr Lin's Conveyancing Act s 89 case.
(1) Parking on Lot 7. The 1997 and 2010 easements do not confer on the dominant tenement, the Laris land, a right to park. This deficiency in the 1997 and 2010 easements and its consequences are discussed in more detail below under the heading "Parking on the 1997 and 2010 Easements", which deals with prayer for relief 5 in the Cross summons.
(2) The informal access is not enforceable. The registered proprietor of the Laris land has no legal right to use the informal access over Lots 1 to 6 to seek access from Croydon Road to the Laris land.
This needs emphasis because of the long period in which the Laris land has informally used the roller door entrance to seek informal access to Croydon Road over the rear of Lots 1 to 6. The Laris land has no present legal right to this informal easement, which is not recorded on the titles either to the Laris land or Lots 1 to 6. Any issue of whether a prescriptive right of way equivalent to the informal access over Lots 1 to 6 could exist in respect of Torrens title land could only arise as an issue between the owners of the Laris land and Lots 1 to 6: see for example Williams v State Transit Authority of NSW [2004] NSWCA 179.
(3) The Laris land cannot use Lot 7's easements. It is not legally permissible for the owner of the Laris land to use the 1997 and 2010 easements to gain access to Lot 7, and then when on Lot 7 to attempt to take advantage of Lot 7's own separate easement over Lots 1 to 6 with the object that the owner of the Laris land could thereby gain access to Croydon Road. The owner of the Laris land would thereby be proposing to use two separate easements to gain vehicular access to Croydon Road, but for only one of which easements he was the dominant tenement holder.
The law does not permit a dominant tenement owner (in this case the owner of Lot 7) to extend the benefit of Lot 7's easement over Lots 1 to 6 (one of the two 1927 rights of carriageway) by allowing the owner of the adjoining Laris land access to Lot 7 for that purpose. The Lot 7 owner's rights under the 1927 easements over Lots 1 to 6 are limited to the Lot 7 owner's enjoyment and usage of Lot 7. In the language of Re Ellenborough Park [1956] Ch 131, at 170, per Evershed MR, "the easement must accommodate the dominant tenement". Romer LJ expressed the applicable principle thus in Harris v Flower & Sons (1904) 74 LJ Ch 127 ("Harris") at 132: "If a right of way be granted for the enjoyment of a close A, the grantee because he owns or acquires close B, cannot use the way in substance for passing over close A to close B".
Graham J applied Harris in Bracewell v Appleby [1975] Ch 408. There the defendant, owned a house to which there was a right of way "of the fullest description". The defendant purchased an adjoining plot of land and built another house on it. The defendant was held to have no right as the owner of the dominant tenement to extend the grant of the easement to the adjoining plot.
This statement in Harris is sometimes formulated as a proposition that the owner of a right of way cannot, in general, use the way for the service of tenements other than the dominant tenement: Paterson and Barr Ltd v University of Otago [1925] NZLR 191 at 195. The statement in Harris was expressly affirmed and applied by the High Court in Westfield Management Ltd v Perpetual Trustee Company Limited (2007) 233 CLR 528; [2007] HCA 45 ("Westfield"); [2007] HCA 45 at [24] - [29]. The High Court approved Brereton J's statement in Westfield at first instance that Harris stands for the proposition that "the use of an easement cannot be extended, beyond the scope of the grant, to impose a burden greater than that which the servient owner agreed to accept" (at [26]).
The High Court in Westfield also accepted (at [28]) Brereton J's elaboration of this statement, "It is not in excess of the grant to use a right of way to access the dominant tenement for those purposes that were contemplated at the time of the grant". This reflects a recognized exception to the statement in Harris; and that exception applies where at the time of the grant, using the example in Harris, close A already forms a means of access to close B: Nickerson v Barroughclough [1980] Ch 325.
Here such an exception cannot apply. There is no evidence before the Court in these proceedings that at the time that the 1927 right of carriageway was created for the benefit of Lot 7, that Lot 7 was already used as a means of access to the Laris land.
Thus the owner of Lot 7 could not give in 1997 and 2010, by the 1997 and 2010 easements, nor could the owner of the Laris land thereby obtain, rights over Lots 1 to 6 that did not exist in 1927. That can only be done now by the owner of the Laris land negotiating for those rights with the owners of Lots 1 to 6 or bringing an application under Conveyancing Act, s 88K for the grant of an easement to that effect.
(4) The Laris land is the only access to Lot 7. The 1997 and 2010 easements create a right of carriageway which would entitle the owner of the Laris land to enter Lot 7 from the Laris land but not to enter or return from Lot 7 through the rear of Lots 1 or 2 in DP14354.
In my view, no part of the 1997 or 2010 easements permits the owner of the Laris land to use them for one of the purposes that Mr Laris thinks they can be used, namely to assist in the unloading of goods from trucks using the informal access over the rear of Lots 1 to 6. Although I accept that such informal usage existed in 1997 and 2010 and had existed for a long time before that as has already been seen, there was no legal basis for that usage over Lots 1 to 6. In my view, the grant of a right of carriageway between the Laris land and Lot 7 could not be construed to confer any rights upon the owner of the Laris land or the owner of Lot 7 over any part of Lots 1 to 6. The owners of Lots 1 to 6 were not party to either of the instruments that created the 1997 or 2010 easements.
The essential question in construing what is granted by an easement is the single question "What does the grant authorise?" One way of posing that question is to ask "What use was intended to be authorised by the grant?" and although the question is addressed without separately investigating what was contemplated by the parties, nevertheless regard may be had to surrounding circumstances: Perpetual Trustee Company Ltd v Westfield Management Ltd [2006] NSWCA 337 per Hodgson JA at [26] - [28], affirmed by the High Court in Westfield.
That principle when applied here can only lead to the conclusion in my view that the right of carriageway created by the 1997 and 2010 easements was to "pass and re-pass" directly between the Laris land and Lot 7. Without the involvement of the owners of Lots 1 to 6 in the creation of either instrument the authority expressly granted to pass and re-pass under those instruments must be limited to pass and re-pass directly between the Laris land and Lot 7 and not through any of Lots 1 to 6.
Nor can any wider authority to pass and re-pass through Lots 1 to 6 arise by implication. A grantee of a right of away ordinarily has no right of deviation onto another part of a servient tenement, except where the servient tenement owner obstructs the right-of-way: Hemmes Hermitage Pty Ltd v Abdurahman (1991) 22 NSWLR 343, at 347-8. But such ancillary rights would not permit deviation onto the land of a third party, which deviation would always remain a trespass upon that third party's land.
This conclusion highlights one of the odd features of this case. The 1997 and 2010 easements in my view do not permit anyone to drive a vehicle or seek access to from the Laris land via Lot 1 or Lot 2 by driving in a southerly direction onto Lot 7 across its boundary with Lots 1 and 2. The only means of access that the right of carriageway of the 1997 and 2010 easements either expressly confers or implies is one directly between the Laris land and Lot 7 in either direction. It is not an obstacle to such a right of way that there is nowhere else to go to from Lot 7. For example, the owner of the Laris land may wish to use the right of carriageway for manoeuvring vehicles that are too big to manoeuvre on the Laris land alone without that extension.
But as the factory on the Laris land is presently constructed, such movement is not possible. There is a factory wall at the boundary of Lot 7 and the Laris land. The roller door opening does not open onto Lot 7 but onto the rear of Lots 1 to 6 at the end of the informal access over those lots.
There can be no doubt, given the age of the factory on the Laris land and the evidence of the parties that this was the situation in 1997 and 2010. Just why the rights of carriageway in the 1997 and 2010 easements were created given these physical characteristics of the land is difficult to understand. All that perhaps can be said is that the grant of the easements in this form had the effect of not putting the owners of Lots 1 to 6 on notice of the fact that the Laris land had no legal right of access over their properties. Perhaps it was convenient to leave matters this way.
But another consequence of this reasoning in my view is that there is no reason why the owner of Lot 7 cannot fence the boundary between Lot 7 and the rear of Lots 1 and 2 to prevent access from that direction onto Lot 7. Exactly how this relates to the various constructions and obstructions that are alleged to have been in place over time on Lot 7 will need to be the subject of the contested trespass case. But the Court can make an appropriately worded declaration to the effect of this conclusion and will hear submissions about the form of that declaration.

Considering Prayers for Relief 1 and 2

It is difficult to see how any part of Conveyancing Act, s 89 is available to Mr Lin in this case. None of the grounds in ss 89(1)(a),(b) or (c) are obviously applicable here. The Court will briefly deal with each of these grounds in turn. As to s 89(1)(a) there has been no obvious change in use of the land having a benefit of the easement or in the character of the neighbourhood since the creation of the easements such that the easements ought be deemed obsolete. Nor is this a case where the continued existence of the easement would impede the reasonable user of the land the subject of the easement without securing any practicable benefit of the persons entitled to the easement.
A consequence of the Court's reasoning above is that the easement cannot be used in any practical sense now because there is a wall between the Laris land and Lot 7. The Court's reasoning below commencing with the introduction "What is to happen next?" makes quite clear that the owner of the Laris land has a number of options presently available either by negotiation or by Court application, which hold the reasonable prospect that aspects of the usage contemplated by the 1997 and 2010 easements for the benefit of the Laris land may yet be possible. There could still be practical benefits available to the Laris land were the factory to be altered and vehicles needed to be manoeuvred within the Laris land and Lot 7. And the owner of the Laris land should not be prejudiced in taking the further steps that it may need to take to solve its access problems by the Court extinguishing these easements now.
In relation to s 89(1)(b) the easement has clearly not been abandoned. The 1997 and 2010 easements were both created within the last 20 years and some misconceived attempts to use them, whether justified or not, has taken place, until the present dispute arose. The owner of the Laris land may wish to change the factory to take advantage of the easement in its current form, to manoeuvre vehicles within the Laris land.
As to s 89(1)(c) it cannot be said in my view that the modification or extinguishment of the easements would not substantially injure the owners of the dominant tenement. Despite the lack of obvious immediate utility of the easements until the registered proprietor of the Laris land is able to negotiate or seek Court orders to make the informal access over Lots 1 to 6 a legal easement, extinguishing the easement now may well disadvantage the owner of the Laris land in future Court action or negotiation with the owners of Lots 1 to 7. And once these reasons are considered in light of the proper construction of the 1997 and 2010 easements, the registered proprietor of the Laris land may develop other uses for these two easements.
What is to happen next? There seems little short-term or long-term alternative for persons interested in maximizing the value of the Laris land but to negotiate for, or to make an application under Conveyancing Act s 88K for an order imposing, an easement over Lots 1 to 6 to make the existing informal access over Lots 1 to 6 legally enforceable. Such an application would be brought on the basis that an 88K order for an easement is "reasonably necessary for the effective use or development of other land [the Laris land] that will have the benefit of the easement". The other main option is to abandon such informal access.
The continued acquiescence of the owners of Lots 1 to 6 in the informal right-of-way over the rear of their respective premises for the benefit of the owners of the Laris land, is some practical recognition on their part that a right of carriageway over this existing informal access is probably reasonably necessary for the effective use of the Laris land, given that it has no other vehicular access to Parramatta Road.
But this Court cannot decide such issues now. A separate Conveyancing Act s 88K application would need to be brought joining the owners of Lots 1 to 6 as parties in a new proceeding. The owners of Lots 1 to 6 may well have arguments against the making of a section 88K order at the suit of an owner of the Laris land, which arguments have not been deployed in the course of the present application. Nothing in this judgment should be seen as suggesting the outcome of such a future case. An application under section 88K would ordinarily need to be preceded by an offer of compensation to the lots proposed to be burdened and the making of reasonable attempts to obtain such an easement by negotiation: see Conveyancing Act s 88K(2). Even if an order were to be made under section 88K, it would usually be on terms that some compensation be paid to the proposed servient owners of Lots 1 to 6.
But who is going to do this in future is quite uncertain. The indications are that the NAB proposes to sell the Laris land pursuant to its power of sale once these proceedings are resolved. But the NAB may decide that it wants to auction the property without making a section 88K application. It is ultimately a matter for the NAB to assess whether the investment of time and financial resources into making a section 88K application will add more value to the security property it proposes to sell than the money expended on making the application.
It may also yet be in the interests of Mr Laris or his Official Trustee for someone to begin to negotiate informally with the owners of Lots 1 to 6 for the creation of a right of carriageway of the rear of Lots 1 to 6, at least to see whether the creation of such an easement was likely to be costly, or whether because it has been in practical use for so long, that little compensation will be required to create a legally enfocable easement over the path of the existing informal access over Lots 1 to 6.
But something will need to be done. The publication of this judgment will only emphasize the lack of rights that the Laris land has over Lots 1 to 6. This is a matter which seems rather surprisingly to have escaped the attention of the owners of Lots 1 to 6 for about 50 years. The interests of Mr Laris, the Official Trustee and the NAB all coincide to a degree in having this problem resolved.
But none of them have yet shown any interest in pursuing this course. If this situation were to continue and if no physical alteration were to be made to the Laris land to open up a means of practical access from the Laris land directly onto Lot 7, the servient tenement of the 1997 and 2010 easements, then at some stage in the future an owner of Lot 7 may indeed have a basis to apply for extinguishment of the 1997 and 2010 easements.
But in my view whilst all these matters are unresolved. Whilst such a section 88K application remains a future possibility and whilst the owner of the Laris land considers the proper use of the 1997 and 2010 easements, the registered proprietor of Lot 7 does not presently have such a case for extinguishment. Were a future section 88K application to be successful, the 1997 to 2010 easements may yet have more practical advantages for the registered proprietor of the Laris land than they do now, as has been described earlier in these reasons. Partly because there is a realistic prospect that those practical advantages will be available to the dominant tenement in the future for the reasons earlier stated this Conveyancing Act s 89 application should now be dismissed.

Parking on the 1997 and 2010 Easements

The photographic and testimonial evidence in the proceedings is clear that the area of the 1997 and 2010 easements has been used to park vehicles from time to time. Photographs tendered by Mr Laris that are part of Exhibit E show four or five vehicles parked closely together in this area. The parked vehicles have the name "G-Tech Shopfitting" on them and are clearly associated with the conduct of the lessee's business, G-Tech that was being conducted on the Laris land. It is self-evident from these photographs that the vehicles concerned are not being loaded or unloaded. Rather they are parked and locked in a manner consistent with them being left there for a period, pending someone making a decision about their further use.
Mr Lin too alleges that the area was used for parking. He says that he took steps to prevent parking occurring on the concrete surface area that approximately coincides with the area of the 1997 and 2010 easements. That parking has occurred over the years on the part of Lot 7 covered by these easements as an adjunct to the factory operations conducted on the Laris land is not in serious contest in the proceedings.
But is this permissible within the terms of the 1997 and 2010 easements? In my view neither easement permits parking on the right of carriageway. The Court has already indicated there are practical limitations in how the right of carriageway benefiting the Laris land can presently be used. But even allowing for these limitations, such passing and re-passing as may be possible on the area of the 1997 and 2010 easements does not allow them to be used as a parking area.
The legal principles in relation to parking on rights of carriageway are well established. In the absence of an implied term, a right of carriageway which authorises passing and re-passing to and from the dominant property does not authorise parking on the site of the easement except such parking as is necessarily a part of passing and re-passing to and from the dominant property: Trewin v Felton [2007] NSWSC 1370 (at [52]) per Brereton J. The owner of the dominant tenement of a right of carriageway ordinarily has the right to halt, to load and unload and to stop momentarily to set down or pick up passengers but this must be a de minimis use and no more: Bulstrode v Lambert [1953] 1 WLR 1064 at 1070. An easement of way does not normally entitle the dominant owner to park on the way: Butler v Muddle (1995) 6 BPR 13,984 per Young J. There may be some circumstances where the Court will decide otherwise, such as where there are parking bays mapped out in the plan by which the easement was granted but the issue is whether a right of parking is reasonably necessary for the effective and reasonable exercise and enjoyment of the rights that are expressly granted: Butler v Muddle (at 13, 987).
In Middleton v Arthur [2002] NSWSC 627 Palmer J said (at [34]) that the right to pass and re-pass does not necessarily require constant movement and the question will depend entirely on the issue of whether a right to stop on the way is reasonably necessary for the effective and reasonable exercise and enjoyment of the rights expressly granted.
Finally, in O'Donnell v Furci [2006] NSWSC 753 ("O'Donnell") White J dealt with a case which has some parallels to the present one. There the dominant tenement owner occupied commercial premises and was held to have exceeded the right to load and unload where the evidence showed that tradesmen and construction workers that the dominant tenement owner had engaged regularly obstructed access to the servient owner's house. In O'Donnell (at [24]) White J stated: "The first defendant is not entitled to say that the plaintiff and members of her household should accommodate themselves so as to make arrangements to leave and return to their property only when it suits the convenience of the first and second defendants' tradesmen. A householder is entitled at any time to use the right of carriageway. There is a substantial interference with that right whenever he or she is obstructed from using it. That is so whether the period of obstruction is 40 or 50 minutes, as is alleged by the plaintiff to have occurred from time to time, or 10 or 15 minutes, or even shorter periods..."
Of course here the 1997 and 2010 easements do not themselves give legal access to Croydon Road. The only relevant loading and unloading that occurs here is through the informal access over Lots 1 to 6. But even if the informal access over Lots 1 to 6 were to be converted into an easement in favour of the Laris land, it seems to me that cases such as O'Donnell, Butler v Muddle and Trewin v Felton make it clear that the servants and agents of the occupier of the Laris land cannot use the area of the 1997 and 2010 easements to park all day or even as a convenient staging point for the storage of vehicles in between commercial trips to and from the commercial premises on the Laris land. And this is so even if some loading or unloading were to occur as well from time to time.
It is possible to expressly confer a right to park. There are cases in which that has been held to constitute an easement: Owners of East Fremantle Shopping Centre West Strata Plan 8618 v Action Supermarkets Pty Ltd (2008) 37 WAR 498; [2008] WASCA 180 and Queanbeyan Leagues Club Ltd v Poldune Pty Ltd (1996) 7 BPR 15,078. But no such express right was conferred when the 1997 and 2010 easements were created
Subject to hearing from the parties about its terms, the Court will make a declaration that the occupier from time to time of the Laris land is not permitted to park vehicles on the area of the 1997 easement or the area of the 2010 easement on Lot 7. As the owner of Lot 8 is not a party to the proceedings the declaration will not be binding as between Mr Laris and the owner of Lot 8.

Conclusions and Orders

For the reasons given above the cross-claimant Mr Lin has failed to obtain a grant of relief under Conveyancing Act 1919, s 89 to extinguish or vary the 1997 and 2010 easements. Mr Lin has failed to make out sufficient grounds for the Court to exercise its discretion under s 89, so prayers for relief 1, 2 and 6 of the Cross Summons will be dismissed.
In relation to the other relief claimed in the Cross-Claim, Mr Lin has been successful in his claim for a declaration that the cross-defendant Mr Laris and occupiers of the Laris land are not entitled to park on the area of the 1997 or 2010 easements and successful in relation to a declaration that he has the right to fence the boundary between Lot 7 and the rear of Lots 1 and 2 in DP14354. But the form of the latter declaration may need to be the subject of further submissions.
The balance of the claims for relief will be determined separately and at a later hearing, for the reasons explained earlier in this judgment. Thus the issues of past trespasses on Lot 7, due to parking and the past replacement and removal of fences across the right of way and other obstructions will be determined later, together with all other issues of trespass.
In relation to costs, the proceedings have had a mixed result so far. Mr Lin has been unsuccessful on his Conveyancing Act, s 89 claim but successful on his prayers for relief in relation to parking (prayer 4) and fencing of the right of way (prayer 5). It may be that each party should bear his own costs of these proceedings. In any event Mr Laris has appeared for himself and has not obviously incurred legal costs that he can recover. But any issues of costs may need to be the subject of further submissions.
The parties should provide to the Court dates when they say that they will be ready to argue such issues of costs as remain an issue. The parties will also need to set aside time to deal with Mr Lin's claim in trespass (prayer for relief 7). The Court will set a directions hearing on 6 June 2016 at 9.30am, to ascertain these matters.
In the result therefore the Court orders and declares as follows:- 1. Dismiss prayers for relief 1, 2 and 6 of the Cross-Claim. 2. Declare that the registered proprietor of Lot 1 in DP743076 is not permitted to park vehicles on the area of the 1997 easement or the 2010 easement. 3. Order that issues raised by prayer for relief 7 be tried separately from all other issues in these proceedings. 4. List the proceedings for further directions on Monday, 6 June 2016 at 9.30am before me.

Amendments 09 May 2016 - [2] 2016 to 2015 [13] "small office the mezzanine floor" to "small office on the mezzanine floor" [73(b)] "Proprietor" to "Proprietors", and "implied (or lost) modern deed of release" to "implied or lost modern deed of release" [90] "preposition" to "propposition" [96] "the Westfield" to "Westfield" [98] "right away" to "right of way", "deviation of" to "deviation onto" 06 June 2016 - no further amendments. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 June 2016

At a glance

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Judgment (17 paragraphs)

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Cases Cited (16)

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