Studholme v Rawson [2020] NSWCA 76 (24 April 2020) (Bell P at [1]; Basten JA at [30]; Gleeson JA at [200])


Catchwords:


APPEAL – grounds – order of consideration – bias – effect on trial – need to address first

BIAS – prejudgment – trial judge expressed views based on filed evidence – views expressed to counsel in chambers – reliance on statements in judgment – reliance on overriding purpose in Civil Procedure Act 2005 (NSW), Pt 6 – acquiescence or waiver – statements revealing legal error, not prejudgment

REAL PROPERTY – easements – compensation – assessment of compensation for owner of servient tenement – application of valuation principles in determining compensation payable – need to determine terms and conditions of easement before assessing compensation – Conveyancing Act 1919 (NSW), s 88K(4)

REAL PROPERTY – easements – whether reasonably necessary – terms and conditions of easement – need to determine when deciding whether easement reasonably necessary – drainage works – joint report of expert engineers rejected – need for remittal – Conveyancing Act 1919 (NSW), s 88K(3)

COSTS – easement application – statutory entitlement of land owner – objection based on joint report of experts – whether conduct of land owner unreasonable – basis for departure from statutory entitlement – Conveyancing Act 1919 (NSW), s 88K(5)

PRACTICE AND PROCEDURE – open justice – holding “informal directions hearings” in chambers – no access for public – absence of parties – no record of conversation – risk of participants becoming witnesses – practice decried