Mt Kembla Kids Pty Ltd v McCallum [2019] NSWLEC 1634

Mt Kembla Kids Pty Ltd v McCallum [2019] NSWLEC 1634

The Court, being satisfied that an encroachment exists and that removal is permissible under the Encroachment of Buildings Act, makes orders in terms agreed by the parties for removal of the encroaching parts by the respondent by 31 March 2020.

Parties
First Applicant: Mt Kembla Kids Pty Ltd; Second Applicant: Modvest Pty Ltd; Respondent: Marion McCallum
Jurisdiction
Australia
Judgment Date
19 December 2019
Procedural Posture
Application Under the Encroachment of Buildings Act 1922 / Conciliation Conference; Final Orders
Outcome
Agreed orders; encroachment to be removed by respondent; no compensation; each party to bear its own legal costs.
Legal Topics
Encroachment, Building Encroachment, Agreed Orders, Removal of Encroachment
Property Law Encroachment Building Encroachment Agreed Orders Removal of Encroachment

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Parties

Mt Kembla Kids Pty Ltd

First Applicant

Modvest Pty Ltd

Second Applicant

Marion McCallum

Respondent

Procedural Posture

Application Under the Encroachment of Buildings Act 1922 / Conciliation Conference; Final Orders

Legal Issues

  1. 1 Whether the building erected on Lot 1 encroaches onto Lot 2
  2. 2 Whether the Court should order removal of the encroachment under the Encroachment of Buildings Act 1922

Ratio Decidendi

The Court, being satisfied that an encroachment exists and that removal is permissible under the Encroachment of Buildings Act, makes orders in terms agreed by the parties for removal of the encroaching parts by the respondent by 31 March 2020.

Court Disposition

Agreed orders; encroachment to be removed by respondent; no compensation; each party to bear its own legal costs.

Orders

  • The building erected on the property with folio identifier 1/158694 known as 2 Benjamin Road, Mount Kembla, New South Wales encroaches on the property with folio identifier 2/158694 known as 4 Benjamin Road, Mount Kembla.
  • The Respondent is to remove the encroachments identified in the Survey Report prepared by Masters Surveying dated 22 December 2017 annexed to these orders and marked "A" by 31 March 2020.