Attard & Anor v Canal & Anor [2005] NSWLEC 222

Attard & Anor v Canal & Anor [2005] NSWLEC 222

The Applicants did not act negligently in constructing the shed; loss and damage to Respondents from transfer is not significant and is adequately compensated by market value; loss and damage to Applicants from removal would be substantial. The Court exercises discretion under s 3 of the Encroachment of Buildings Act to order transfer of land with payment of agreed compensation.

Jurisdiction
Australia
Judgment Date
12 May 2005
Procedural Posture
Class 3 Application / Judgment
Outcome
Relief granted to applicants; transfer of encroached land ordered with payment of compensation.
Legal Topics
['encroachment' 'compensation' 'boundary Disputes']
['property Law'] ['encroachment' 'compensation' 'boundary Disputes']

Case Brief

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Procedural Posture

Class 3 Application / Judgment

Legal Issues

  1. 1 ['Whether the encroaching owners should be ordered to remove the shed or whether the respondents should transfer the encroached land with compensation.' 'Whether the encroachment resulted from negligence or reasonable mistake.' 'Determining appropriate compensation for the transfer of land under the Encroachment of Buildings Act 1922.']

Ratio Decidendi

The Applicants did not act negligently in constructing the shed; loss and damage to Respondents from transfer is not significant and is adequately compensated by market value; loss and damage to Applicants from removal would be substantial. The Court exercises discretion under s 3 of the Encroachment of Buildings Act to order transfer of land with payment of agreed compensation.

Court Disposition

Relief granted to applicants; transfer of encroached land ordered with payment of compensation.

Orders

  • ['The Respondents transfer to the Applicants 1,190sq m of land currently forming part of Lot 119 DP 31359 between the Colorbond fence and the boundary of Lot 118 DP 31359 from the boundary at Selkirk Avenue, Cecil Park to the rear of the allotment as shown in Attachment 1.' 'The Applicants pay the Respondents...