XR Property Developments Pty Limited v Denning Real Estate Pty Limited [2015] NSWSC 1937

XR Property Developments Pty Limited v Denning Real Estate Pty Limited [2015] NSWSC 1937

The purlins supporting the Defendant's roof encroached on the Plaintiff's land, but the single skin brick wall was wholly on the Plaintiff's land and was not the Defendant's encroachment. On the balance of probabilities, the relevant works were carried out while both parcels were under common ownership, so there was no initial trespass or nuisance and therefore no continuing trespass or nuisance. The damages claims failed except insofar as they arose under the Encroachment of Buildings Act 1922 (NSW). Questions of compensation and final removal orders were postponed, with the matter to be stood over.

Jurisdiction
Australia
Judgment Date
18 December 2015
Procedural Posture
Claim and Cross Claim Under the Encroachment of Buildings Act 1922 (nsw) / Principal Judgment After Hearing; Matter Stood Over to a Date in 2016 to Deal With Outstanding Matters
Outcome
Matter stood over to a date in 2016 to deal with outstanding matters; damages claims failed except insofar as they came under the Encroachment of Buildings Act 1922 (NSW).
Legal Topics
['encroachment of Buildings' 'trespass' 'nuisance' 'removal of Encroachment' 'compensation for Encroachment' 'common Ownership of Adjoining Land']
['property Law' 'equity'] ['encroachment of Buildings' 'trespass' 'nuisance' 'removal of Encroachment' 'compensation for Encroachment' 'common Ownership of Adjoining Land']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Claim and Cross Claim Under the Encroachment of Buildings Act 1922 (nsw) / Principal Judgment After Hearing; Matter Stood Over to a Date in 2016 to Deal With Outstanding Matters

Legal Issues

  1. 1 ["Whether purlins supporting the Defendant's roof constituted an encroachment on the Plaintiff's land under the Encroachment of Buildings Act 1922 (NSW)." 'Whether the encroachment constituted trespass or nuisance where the relevant works were carried out while both parcels were in common ownership.' 'Whether and when removal of the encroaching purlins should be ordered.' 'Whether compensation issues should be postponed and whether the encroachment should be treated as unintentional for compensation purposes.']

Ratio Decidendi

The purlins supporting the Defendant's roof encroached on the Plaintiff's land, but the single skin brick wall was wholly on the Plaintiff's land and was not the Defendant's encroachment. On the balance of probabilities, the relevant works were carried out while both parcels were under common ownership, so there was no initial trespass or nuisance and therefore no continuing trespass or nuisance. The damages claims failed except insofar as they arose under the Encroachment of Buildings Act 1922 (NSW). Questions of compensation and final removal orders were postponed, with the matter to be stood over.

Court Disposition

Matter stood over to a date in 2016 to deal with outstanding matters; damages claims failed except insofar as they came under the Encroachment of Buildings Act 1922 (NSW).

Orders

  • ['The proceedings were adjourned to next year on the basis that the Plaintiff will not remove the wall on which the encroaching purlins rest, pending the final hearing of the proceedings.' 'If there is a threat to remove the wall, a Motion for injunction may be made returnable before the Duty Judge or a Vacation...