J and T Lonsdale v P Gilbert & Ors [2006] NSWLEC 30

J and T Lonsdale v P Gilbert & Ors [2006] NSWLEC 30

Relief was granted for removal of the encroachment under the Act because the Applicants did not acquiesce to or benefit in exchange for the encroachment, the encroachments constituted a trespass, and the responsible party was the first Respondent (original owner and creator of the encroachment). Both encroaching owners are to be the subject of removal orders, but the first Respondent must indemnify the second Respondents as they were innocent purchasers. Discretion did not justify decline of relief merely due to minor loss or applicant delay, given the recent and intentional/negligent character of the encroachment.

Jurisdiction
Australia
Judgment Date
30 January 2006
Procedural Posture
Application Under the Encroachment of Buildings Act 1922 / Final Judgment
Outcome
Relief granted for removal of encroachment; orders made as to indemnity and costs.
Legal Topics
['encroachment' 'trespass' 'retaining Walls' 'remedies for Encroachment' 'costs']
['property Law'] ['encroachment' 'trespass' 'retaining Walls' 'remedies for Encroachment' 'costs']

Case Brief

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Procedural Posture

Application Under the Encroachment of Buildings Act 1922 / Final Judgment

Legal Issues

  1. 1 ["Whether encroachment exists on the Applicants' property by retaining wall and fence" 'Appropriate remedy under the Encroachment of Buildings Act 1922' 'Responsibility of current and former owner(s) for removal and costs' 'Whether discretionary defences such as acquiescence or benefit to Applicants prevent relief']

Ratio Decidendi

Relief was granted for removal of the encroachment under the Act because the Applicants did not acquiesce to or benefit in exchange for the encroachment, the encroachments constituted a trespass, and the responsible party was the first Respondent (original owner and creator of the encroachment). Both encroaching owners are to be the subject of removal orders, but the first Respondent must indemnify the second Respondents as they were innocent purchasers. Discretion did not justify decline of relief merely due to minor loss or applicant delay, given the recent and intentional/negligent character of the encroachment.

Court Disposition

Relief granted for removal of encroachment; orders made as to indemnity and costs.

Orders

  • ['Applicants granted leave to amend Points of Claim to include claim against second Respondents as encroaching owner' "First Respondent ordered to remove encroachments from Applicants' land emanating from his property" "Second Respondents ordered to remove encroachments from Applicants' land emanating from their...