Burgess v Benakis [2024] NSWSC 1436

Burgess v Benakis [2024] NSWSC 1436

The encroachments by Ms Benakis are unreasonable interferences with Mr Burgess’ enjoyment of his land and must be removed, as they inhibit his approved development and are not a long-term or viable solution for supporting Ms Benakis' garage. The existence of a prior informal agreement does not outweigh the impact or warrant an easement, and Ms Benakis did not establish hardship or relevant authority for a temporary easement. On nuisance, Ms Benakis failed to prove a material and unreasonable interference caused by stormwater; Mr Burgess had taken reasonable steps to abate any potential nuisance and offered an undertaking to carry out drainage works.

Parties
Plaintiff: Mark Paul Burgess; Defendant: Sophia Benakis
Jurisdiction
Australia
Judgment Date
13 November 2024
Procedural Posture
Civil / Final Judgment
Outcome
Plaintiff's claim for removal of encroachments successful; cross-claim dismissed
Legal Topics
Encroachment of Buildings, Easements, Private Nuisance, Stormwater Ingress
Land Law Torts Encroachment of Buildings Easements Private Nuisance Stormwater Ingress

Case Brief

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Parties

Mark Paul Burgess

Plaintiff

Sophia Benakis

Defendant

Procedural Posture

Civil / Final Judgment

Legal Issues

  1. 1 Whether defendant should be ordered to remove encroaching metal beams and concrete footings supporting garage wall
  2. 2 Whether the defendant ought be granted a temporary easement of support for the garage wall
  3. 3 Whether the plaintiff has caused or continues to cause a nuisance by stormwater ingress

Ratio Decidendi

The encroachments by Ms Benakis are unreasonable interferences with Mr Burgess’ enjoyment of his land and must be removed, as they inhibit his approved development and are not a long-term or viable solution for supporting Ms Benakis' garage. The existence of a prior informal agreement does not outweigh the impact or warrant an easement, and Ms Benakis did not establish hardship or relevant authority for a temporary easement. On nuisance, Ms Benakis failed to prove a material and unreasonable interference caused by stormwater; Mr Burgess had taken reasonable steps to abate any potential nuisance and offered an undertaking to carry out drainage works.

Court Disposition

Plaintiff's claim for removal of encroachments successful; cross-claim dismissed

Orders

  • Court notes the plaintiff's undertaking to carry out drainage works attached to the orders
  • Order for removal of the encroachments as identified in the Statement of Claim, pursuant to ss 3(2)(c) and 10 Encroachment of Buildings Act 1922 (NSW), within 90 days from the date of judgment