Llavero v Shearer (No 2) [2015] NSWSC 284

Llavero v Shearer (No 2) [2015] NSWSC 284

Plaintiffs' claim for damages for loss of support failed as expert evidence established no causative link between defendant's works and the damage. An easement was imposed to regularise the minor encroachment under the Encroachment of Buildings Act 1922 (NSW), with compensation payable. Costs were apportioned on an issue-by-issue basis, and indemnity costs were declined as the relevant Calderbank offers were not reasonable in the circumstances.

Jurisdiction
Australia
Judgment Date
24 March 2015
Procedural Posture
Principal Judgment / Post Trial (orders Following Substantive Judgment)
Outcome
Plaintiffs' claim for damages for loss of support dismissed. Easement imposed for encroachment with compensation. Costs apportioned per orders.
Legal Topics
['costs' 'encroachment of Buildings' 'easements' 'loss of Support' 'calderbank Offer']
['real Property' 'equity'] ['costs' 'encroachment of Buildings' 'easements' 'loss of Support' 'calderbank Offer']

Case Brief

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Procedural Posture

Principal Judgment / Post Trial (orders Following Substantive Judgment)

Legal Issues

  1. 1 ['Whether damages for loss of support were established.' 'Whether an easement should be granted for an encroaching structure under the Encroachment of Buildings Act 1922 (NSW).' 'Whether indemnity costs should be awarded with reference to Calderbank letters.' 'Appropriate allocation of costs where issues are determined on an issue-by-issue basis.']

Ratio Decidendi

Plaintiffs' claim for damages for loss of support failed as expert evidence established no causative link between defendant's works and the damage. An easement was imposed to regularise the minor encroachment under the Encroachment of Buildings Act 1922 (NSW), with compensation payable. Costs were apportioned on an issue-by-issue basis, and indemnity costs were declined as the relevant Calderbank offers were not reasonable in the circumstances.

Court Disposition

Plaintiffs' claim for damages for loss of support dismissed. Easement imposed for encroachment with compensation. Costs apportioned per orders.

Orders

  • ["Plaintiffs' claim for damages for loss of support dismissed." 'First cross-claim by first and second defendants dismissed.' "Easement imposed over part of plaintiffs' land in favour of first and second defendants pursuant to s 3(2)(b) Encroachment of Buildings Act 1922 (NSW)." 'Compensation of $1,100 to be paid by...