Has The Right Of Carriageway Been Abandoned?

Castle v Achdjian [2022] NSWSC 1340

In the case of Castle v Achdjian [2022] NSWSC 1340, the Supreme Court of NSW had to decide whether a right of carriageway was abandoned and could be obstructed by the owners of the burdened land. This case demonstrates the continuing complexities and evidentiary requirements that must be satisfied in an application made under section 89(1) of the Conveyancing Act 1919 (NSW) (Act) to extinguish an easement.

Background

The Castles, the Plaintiffs, are the owners of the property at 20 Vista Close (Lot 30). Lot 30 is adjoined to the property at 8 Marlee Street in Hornsby (Lot 29). Lot 29 is owned by the Achdjians, the Defendants. A right of carriageway (Easement) was created in 1967 such that Lot 29 was burdened, and Lot 30 was benefitted with the Easement. The terms of the Easement are those contained in Part 1 of Schedule 8 of the Act.