Boensch v Transport for NSW and Registrar General of New South Wales [2023] NSWLEC 82

Boensch v Transport for NSW and Registrar General of New South Wales [2023] NSWLEC 82

Applicant's amended application was dismissed because there is no statutory right of appeal under s 135J of the Real Property Act 1900 (NSW) against either the Registrar General’s refusal to make a boundary determination in 2022 or the 1996 boundary determination; appeal against 1996 determination is out of time and cannot be extended; claims under the Encroachment of Buildings Act constitute an abuse of process due to concurrent Supreme Court proceedings; there is no reasonable cause of action in the amended application.

Jurisdiction
Australia
Judgment Date
28 July 2023
Procedural Posture
Summary Dismissal Application / Final Determination on Motions
Outcome
Proceedings dismissed
Legal Topics
['boundary Determination' 'appeals' 'summary Dismissal' 'jurisdiction' 'encroachment of Buildings']
['property Law' 'civil Procedure'] ['boundary Determination' 'appeals' 'summary Dismissal' 'jurisdiction' 'encroachment of Buildings']

Case Brief

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Procedural Posture

Summary Dismissal Application / Final Determination on Motions

Legal Issues

  1. 1 ["Whether applicant has standing to appeal Registrar General's outcomes" 'Whether amended application discloses a reasonable cause of action' 'Whether claims are an abuse of process' 'Whether court has jurisdiction to extend statutory limitation period' 'Whether claims under the Encroachment of Buildings Act can proceed']

Ratio Decidendi

Applicant's amended application was dismissed because there is no statutory right of appeal under s 135J of the Real Property Act 1900 (NSW) against either the Registrar General’s refusal to make a boundary determination in 2022 or the 1996 boundary determination; appeal against 1996 determination is out of time and cannot be extended; claims under the Encroachment of Buildings Act constitute an abuse of process due to concurrent Supreme Court proceedings; there is no reasonable cause of action in the amended application.

Court Disposition

Proceedings dismissed

Orders

  • ['The proceedings are dismissed pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW).' 'Costs are reserved.']