The Owners – Strata Plan No 91016 v Upright Builders Pty Ltd [2023] NSWSC 649

The Owners – Strata Plan No 91016 v Upright Builders Pty Ltd [2023] NSWSC 649

A separate question will be ordered to determine whether the Council is an 'adjacent owner' for the purposes of the Encroachment of Buildings Act 1922 (NSW), as this statutory construction question, if answered in the Council's favour, would be dispositive. Leave to amend the Summons and List Statement to seek further declarations was refused as the proposed declarations are hypothetical, have no present utility, and may concern matters beyond the Court's jurisdiction.

Jurisdiction
Australia
Judgment Date
15 June 2023
Procedural Posture
Civil Procedure Equity Technology and Construction List / Procedural Ruling on Separate Question and Amendment Application
Outcome
Separate question ordered; leave to amend Summons and List Statement refused; Owners Corporation's Notice of Motion dismissed with costs
Legal Topics
['separate Question Procedure' 'amendment of Pleadings' 'encroachment of Buildings' 'public Road Encroachments' 'declarations of Property Interest']
['civil Procedure' 'equity' 'property Law' 'local Government Law' 'construction Law'] ['separate Question Procedure' 'amendment of Pleadings' 'encroachment of Buildings' 'public Road Encroachments' 'declarations of Property Interest']

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Procedural Posture

Civil Procedure Equity Technology and Construction List / Procedural Ruling on Separate Question and Amendment Application

Legal Issues

  1. 1 ["Whether the Council is an 'adjacent owner' under Encroachment of Buildings Act 1922 (NSW)" 'Whether proceedings against the Council under the EBA can be maintained' 'Whether to order a separate question on this statutory construction issue' 'Whether to grant leave to amend List Summons and List Statement to seek declarations of no property interest or obligation']

Ratio Decidendi

A separate question will be ordered to determine whether the Council is an 'adjacent owner' for the purposes of the Encroachment of Buildings Act 1922 (NSW), as this statutory construction question, if answered in the Council's favour, would be dispositive. Leave to amend the Summons and List Statement to seek further declarations was refused as the proposed declarations are hypothetical, have no present utility, and may concern matters beyond the Court's jurisdiction.

Court Disposition

Separate question ordered; leave to amend Summons and List Statement refused; Owners Corporation's Notice of Motion dismissed with costs

Orders

  • ["Order for separate question regarding whether Council is an 'adjacent owner' under the EBA" 'Leave to amend Summons and List Statement refused' "Owners Corporation's Notice of Motion of 29 May 2023 dismissed with costs"]