Keith James Wherry v Trustees of the Sisters of Charity of Australia [2000] NSWLEC 252

Keith James Wherry v Trustees of the Sisters of Charity of Australia [2000] NSWLEC 252

Where encroachment arises at the point of severance of unity of title by contract disclosing the encroachment and expressly waiving objections or compensation, it is unconscionable for the purchaser to claim relief under the Act; only minimum compensation based on land value potentially arises, subject to discretionary assessment, and in this case, no compensation is awarded.

Jurisdiction
Australia
Judgment Date
05 December 2000
Procedural Posture
Class 3 Proceedings Under the Encroachment of Buildings Act 1922 / Judgment After Hearing of Application and Cross Application
Outcome
Application dismissed; Cross-application granted in part; No compensation awarded; Easement for support granted; Costs of preparing easement documentation to be paid by Cross Applicant; Other costs reserved.
Legal Topics
['encroachment' 'easements' 'contract Interpretation' 'compensation for Land Encroachment' 'unity of Title' 'real Property Conveyancing']
['property Law'] ['encroachment' 'easements' 'contract Interpretation' 'compensation for Land Encroachment' 'unity of Title' 'real Property Conveyancing']

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Procedural Posture

Class 3 Proceedings Under the Encroachment of Buildings Act 1922 / Judgment After Hearing of Application and Cross Application

Legal Issues

  1. 1 ['Whether an encroachment order or easement should be granted under the Encroachment of Buildings Act 1922 regarding a minor encroachment arising when unity of title was severed' 'Whether the applicant is entitled to compensation for the encroachment' 'Effect of special contractual condition waiving objection/compensation on the applicant’s rights under the Act']

Ratio Decidendi

Where encroachment arises at the point of severance of unity of title by contract disclosing the encroachment and expressly waiving objections or compensation, it is unconscionable for the purchaser to claim relief under the Act; only minimum compensation based on land value potentially arises, subject to discretionary assessment, and in this case, no compensation is awarded.

Court Disposition

Application dismissed; Cross-application granted in part; No compensation awarded; Easement for support granted; Costs of preparing easement documentation to be paid by Cross Applicant; Other costs reserved.

Orders

  • ["Applicant's Application dismissed." 'Cross application granted to extent that an easement for support be created over the encroachment, subject to Cross Applicant paying costs of preparing the easement documentation.' 'Cross-application in other respects dismissed.' 'Question of costs reserved.']