Holz v McMahon [2024] NSWLEC 1245

Holz v McMahon [2024] NSWLEC 1245

Because the parties reached an agreement under s 34(3) of the Land and Environment Court Act 1979 and the agreed decision for removal, survey, rebuilding on the boundary and equal contribution to relevant costs was within the Court's powers under ss 3 and 14 of the Encroachment of Buildings Act 1922, the Court was required to dispose of the proceedings in accordance with the agreed decision.

Jurisdiction
Australia
Judgment Date
14 May 2024
Procedural Posture
Class 3 Application Pursuant to the Encroachment of Buildings Act 1922 / Orders Made Following Agreement Reached at a Conciliation Conference Under S 34 of the Land and Environment Court Act 1979
Outcome
Orders made in accordance with the agreement of the parties; proceedings otherwise dismissed with no orders as to costs.
Legal Topics
['encroachment' 'dividing Fence' 'boundary Line' 'conciliation Conference' 'removal and Rebuilding of Encroaching Structure' 'costs of Removal']
['property Law' 'land Law' 'land and Environment Court Procedure'] ['encroachment' 'dividing Fence' 'boundary Line' 'conciliation Conference' 'removal and Rebuilding of Encroaching Structure' 'costs of Removal']

Case Brief

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Procedural Posture

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

Legal Issues

  1. 1 ['Whether the Court could make orders under the Encroachment of Buildings Act 1922 for removal of the encroaching dividing fence.' "Whether the Court's power to order removal of the encroachment extended to orders for survey and rebuilding on the boundary line." 'Whether the Court could order the parties to contribute equally to the costs of the physical acts required by the orders.' 'Whether the agreement reached at the conciliation conference was a decision the Court could make in the proper exercise of its functions under s 34(3) of the Land and Environment Court Act 1979.']

Ratio Decidendi

Because the parties reached an agreement under s 34(3) of the Land and Environment Court Act 1979 and the agreed decision for removal, survey, rebuilding on the boundary and equal contribution to relevant costs was within the Court's powers under ss 3 and 14 of the Encroachment of Buildings Act 1922, the Court was required to dispose of the proceedings in accordance with the agreed decision.

Court Disposition

Orders made in accordance with the agreement of the parties; proceedings otherwise dismissed with no orders as to costs.

Orders

  • ['Within 60 days of the orders, the dividing fence between 45 Reynolds Street, Balmain (Lot 1 in DP 216914) and 81 Mullens Street, Balmain (Lot 2 in DP 514778) is to be demolished by the applicants, with the respondents to provide access, in accordance with the quotations prepared by Jera Leishman Masonry dated 27...