XR Property Developments Pty Limited v Denning Real Estate Pty Limited (No 2) [2016] NSWSC 556

XR Property Developments Pty Limited v Denning Real Estate Pty Limited (No 2) [2016] NSWSC 556

Because the parties had agreed to resolve the encroachment by a licence at a fee reflecting the accepted valuation, and the Plaintiff did not prove substantial disturbance beyond minor inconvenience and demolition-related matters, only a notional further $500 disturbance compensation was just. The Defendant's encroachment made proceedings necessary, but after the parties had a fair opportunity to investigate and react the remaining costs should lie where they fell; therefore the Defendant should pay the Plaintiff's ordinary costs only up to and including 18 December 2015, excluding the view.

Jurisdiction
Australia
Judgment Date
05 May 2016
Procedural Posture
Equity Proceedings Concerning Encroachment of Buildings / Principal Judgment on Compensation and Costs After Initial Judgment
Outcome
Licence agreement noted; Plaintiff awarded $500 additional disturbance compensation; limited costs order made in Plaintiff's favour up to 18 December 2015, with other costs borne by the party incurring them.
Legal Topics
['encroachment of Buildings' 'compensation' 'licence Agreement' 'disturbance' 'costs Discretion']
['property Law' 'equity' 'costs'] ['encroachment of Buildings' 'compensation' 'licence Agreement' 'disturbance' 'costs Discretion']

Case Brief

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Procedural Posture

Equity Proceedings Concerning Encroachment of Buildings / Principal Judgment on Compensation and Costs After Initial Judgment

Legal Issues

  1. 1 ['Whether the Plaintiff was entitled to compensation under the Encroachment of Buildings Act 1922 (NSW) in addition to the agreed licence fee.' 'Whether the Plaintiff proved substantial disturbance arising from the encroachment.' "What costs order should be made in light of the parties' conduct, offers and the outcome."]

Ratio Decidendi

Because the parties had agreed to resolve the encroachment by a licence at a fee reflecting the accepted valuation, and the Plaintiff did not prove substantial disturbance beyond minor inconvenience and demolition-related matters, only a notional further $500 disturbance compensation was just. The Defendant's encroachment made proceedings necessary, but after the parties had a fair opportunity to investigate and react the remaining costs should lie where they fell; therefore the Defendant should pay the Plaintiff's ordinary costs only up to and including 18 December 2015, excluding the view.

Court Disposition

Licence agreement noted; Plaintiff awarded $500 additional disturbance compensation; limited costs order made in Plaintiff's favour up to 18 December 2015, with other costs borne by the party incurring them.

Orders

  • ["I note that the parties will enter into a licence agreement over the encroachment in the form attached to the Defendant's submissions on quantum of 26 April 2016." 'I order that compensation in addition for disturbance to the amount of $500 be paid by the Defendant to the Plaintiff.' "I order that the Defendant...