Reis v Patrick [2021] NSWLEC 1109

Reis v Patrick [2021] NSWLEC 1109

Because the Applicants brought Class 3 proceedings in the Court under the Encroachment of Buildings Act 1922, the proceedings fell within s 19(c1) of the Land and Environment Court Act 1979, a s 34 conciliation conference was held, and the parties reached an agreement for creation of an easement and payment of money that the Court could have made in the proper exercise of its functions, s 34(3) required the Commissioner to dispose of the proceedings in accordance with that agreement.

Jurisdiction
Australia
Judgment Date
02 March 2021
Procedural Posture
Class 3 Application Under the Encroachment of Buildings Act 1922 / Orders Following Agreement Reached at Conciliation Conference Under S 34 of the Land and Environment Court Act 1979
Outcome
Orders made in accordance with the parties' agreement; proceedings otherwise dismissed with no other order as to costs.
Legal Topics
['encroachment' 'boundary Dispute' 'easement' 'conciliation Conference' 'consent Orders']
['property Law' 'land and Environment Court Procedure'] ['encroachment' 'boundary Dispute' 'easement' 'conciliation Conference' 'consent Orders']

Case Brief

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Procedural Posture

Class 3 Application Under the Encroachment of Buildings Act 1922 / Orders Following Agreement Reached at Conciliation Conference Under S 34 of the Land and Environment Court Act 1979

Legal Issues

  1. 1 ['Whether the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to them under s 34(3) of the Land and Environment Court Act 1979.' 'Whether the agreed decision was a decision that the Court could have made in the proper exercise of its functions.' 'Whether the jurisdictional prerequisites for Class 3 proceedings under the Encroachment of Buildings Act 1922 were satisfied.' 'Whether orders should be made for creation and registration of an easement, payment of money, and dismissal of the proceedings.']

Ratio Decidendi

Because the Applicants brought Class 3 proceedings in the Court under the Encroachment of Buildings Act 1922, the proceedings fell within s 19(c1) of the Land and Environment Court Act 1979, a s 34 conciliation conference was held, and the parties reached an agreement for creation of an easement and payment of money that the Court could have made in the proper exercise of its functions, s 34(3) required the Commissioner to dispose of the proceedings in accordance with that agreement.

Court Disposition

Orders made in accordance with the parties' agreement; proceedings otherwise dismissed with no other order as to costs.

Orders

  • ['Respondents to prepare and register an easement to permit existing structures to remain in respect of the alleged encroachments which are the subject of the proceedings, at the Respondents\' own cost, consistent with the Section 88B Instrument, created pursuant to s 88B of the Conveyancing Act 1919, annexed to the...