CANTAMESSA v SANDERSON [1993] NSWCA 48

CANTAMESSA v SANDERSON [1993] NSWCA 48

The prejudice suffered in the meantime by the unsuccessful party does not require the making of the order. The discretionary decision of Powell J, that Mr and Mrs Sanderson should have occupancy pending appeal, should be respected. Application dismissed.

Parties
Appellant: Miss Cantamessa; Respondent: Robert Sanderson; Respondent: Vicky Sanderson
Jurisdiction
Australia
Judgment Date
27 September 1993
Procedural Posture
Application for Interlocutory Order / Pending Appeal, Application for Injunction
Outcome
application dismissed
Legal Topics
Encroachment, Interlocutory Relief, Discretionary Decision
Property Encroachment Interlocutory Relief Discretionary Decision

Case Brief

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Parties

Miss Cantamessa

Appellant

Robert Sanderson

Respondent

Vicky Sanderson

Respondent

Procedural Posture

Application for Interlocutory Order / Pending Appeal, Application for Injunction

Legal Issues

  1. 1 Whether the respondent should be restrained from carrying out works pending the hearing of the appeal
  2. 2 Whether relevant items (walls, planter box, tiles) are encroachments under the Encroachment of Buildings Act
  3. 3 Whether Powell J erred in exercise of discretion when refusing orders asked for

Ratio Decidendi

The prejudice suffered in the meantime by the unsuccessful party does not require the making of the order. The discretionary decision of Powell J, that Mr and Mrs Sanderson should have occupancy pending appeal, should be respected. Application dismissed.

Court Disposition

application dismissed

Orders

  • Miss Cantamessa to pay the costs of Mr and Mrs Sanderson in these proceedings