Excess Pty Ltd & ors v LLCP Pty Ltd & ors [2008] NSWSC 419

Excess Pty Ltd & ors v LLCP Pty Ltd & ors [2008] NSWSC 419

The stay and extension of time were refused because s 95(c) of the Residential Parks Act 1998 was not attracted: the plaintiffs as adjoining owners were not persons having superior title to the park owner, and they did not become entitled to possession by the proposed orders because they had always been entitled to possession of the encroached parts of their land. Even if s 95(c) applied, s 16(8) preserved the tenant defendants' ability to seek relief in the CTTT after termination. No significant prejudice justified withholding the plaintiffs from their legal rights, and costs were to follow the event because the plaintiffs succeeded and the defendants had no defence to the claim.

Jurisdiction
Australia
Judgment Date
29 February 2008
Procedural Posture
Real Property Proceedings Concerning Removal of Encroachments From Adjoining Land / Consequential Orders; Application for Stay or Extended Time for Compliance and Costs
Outcome
Stay declined. Costs to follow the event.
Legal Topics
['encroachments on Neighbouring Property' 'stay of Orders' 'residential Tenancy Agreements' 'consumer Trader and Tenancy Tribunal Proceedings' 'costs Following the Event']
['real Property' 'residential Parks' 'civil Procedure'] ['encroachments on Neighbouring Property' 'stay of Orders' 'residential Tenancy Agreements' 'consumer Trader and Tenancy Tribunal Proceedings' 'costs Following the Event']

Case Brief

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Procedural Posture

Real Property Proceedings Concerning Removal of Encroachments From Adjoining Land / Consequential Orders; Application for Stay or Extended Time for Compliance and Costs

Legal Issues

  1. 1 ["Whether the operation of orders requiring removal of encroachments should be stayed until further order pending tenant defendants' proceedings in the Consumer Trader and Tenancy Tribunal." 'Whether the plaintiffs, as adjoining owners, were persons having superior title to the park owner for the purposes of (NSW) Residential Parks Act 1998, s 95(c).' 'Whether the plaintiffs became entitled to possession as a result of the proposed orders for the purposes of (NSW) Residential Parks Act 1998, s 95(c).' "Whether any termination of Residential Tenancy Agreements would affect the tenant defendants' ability to seek relief in the Consumer Trader and Tenancy Tribunal." 'Whether costs should follow the event or be ordered on an indemnity basis.']

Ratio Decidendi

The stay and extension of time were refused because s 95(c) of the Residential Parks Act 1998 was not attracted: the plaintiffs as adjoining owners were not persons having superior title to the park owner, and they did not become entitled to possession by the proposed orders because they had always been entitled to possession of the encroached parts of their land. Even if s 95(c) applied, s 16(8) preserved the tenant defendants' ability to seek relief in the CTTT after termination. No significant prejudice justified withholding the plaintiffs from their legal rights, and costs were to follow the event because the plaintiffs succeeded and the defendants had no defence to the claim.

Court Disposition

Stay declined. Costs to follow the event.

Orders

  • ['Note the undertaking of the first defendant LLCP Pty Limited contained in the document initialled by the judge, dated 29 February 2008 and placed with the papers, entitled "Undertaking", conveyed on behalf of the first defendant to the Court by counsel for the plaintiff.' 'Grant leave to the plaintiff to...