Wirth v Will [2022] NSWLEC 118

Wirth v Will [2022] NSWLEC 118

On the balance of probabilities, the court found that there are two separate structures and not a single integrated structure. The upper steps and handrail/balustrade constitute the encroachment and are a 'building' within the meaning of s 2 of the Encroachment of Buildings Act 1922. The respondent's cross-claim for easements was rejected because the rights sought would be futile if only the upper structure is the encroachment. The court exercised its discretion under s 3 of the Act to order removal of the encroaching structure, as its persistent presence would facilitate trespass and interfere with the applicant's enjoyment of property, and permitting its retention had no utility for the...

Jurisdiction
Australia
Judgment Date
15 September 2022
Procedural Posture
Class 3 Proceedings Under the Encroachment of Buildings Act 1922 / Final Judgment After Hearing (trial Phase and Decision, Including Cross Claim and Costs)
Outcome
Applicant's application succeeded; cross-claim dismissed. Removal of the encroaching structure ordered. Costs ordered in favour of the applicant.
Legal Topics
['encroachment of Buildings' 'remedies (removal of Encroachment)' 'easement Application' 'costs']
['property Law' 'civil Procedure'] ['encroachment of Buildings' 'remedies (removal of Encroachment)' 'easement Application' 'costs']

Case Brief

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Procedural Posture

Class 3 Proceedings Under the Encroachment of Buildings Act 1922 / Final Judgment After Hearing (trial Phase and Decision, Including Cross Claim and Costs)

Legal Issues

  1. 1 ['Whether the structure is a single integrated building or two separate structures.' "Whether the encroachment constitutes a 'building' under the Encroachment of Buildings Act 1922." 'Whether the removal of the encroaching structure should be ordered as a matter of discretion under the Act.' 'Whether cross-claim for easements should be allowed.']

Ratio Decidendi

On the balance of probabilities, the court found that there are two separate structures and not a single integrated structure. The upper steps and handrail/balustrade constitute the encroachment and are a 'building' within the meaning of s 2 of the Encroachment of Buildings Act 1922. The respondent's cross-claim for easements was rejected because the rights sought would be futile if only the upper structure is the encroachment. The court exercised its discretion under s 3 of the Act to order removal of the encroaching structure, as its persistent presence would facilitate trespass and interfere with the applicant's enjoyment of property, and permitting its retention had no utility for the...

Court Disposition

Applicant's application succeeded; cross-claim dismissed. Removal of the encroaching structure ordered. Costs ordered in favour of the applicant.

Orders

  • ['The timber stairs and associated handrail/balustrade leading from the rear of 14 Wonderland Avenue across and encroaching on the rear of 12 Wonderland Avenue are to be removed by the Respondents at their cost within 28 days of these orders.' 'The exhibits are returned.' "The Respondents are to pay the Applicant's...