Moini Pty Limited v Lam [2023] NSWLEC 1349

Moini Pty Limited v Lam [2023] NSWLEC 1349

The Commissioner was satisfied that the Applicant was the adjacent owner, the Respondent was the encroaching owner, the relevant stairs, handrails, landing and awning were a substantial and permanent structure amounting to a building and encroachment, and s 3(2)(c) of the Encroachment of Buildings Act 1922 empowered the Court to order removal. Because the parties' agreed decision was one the Court could have made in the proper exercise of its functions, s 34(3) of the Land and Environment Court Act 1979 required the proceedings to be disposed of in accordance with that agreement.

Jurisdiction
Australia
Judgment Date
07 July 2023
Procedural Posture
Class 3 Appeal Commenced Pursuant to S 3(1) of the Encroachment of Buildings Act 1922 / Orders Made Following Conciliation Conference Under S 34(1) of the Land and Environment Court Act 1979 and Agreement Between the Parties
Outcome
The appeal is upheld.
Legal Topics
['encroachment' 'removal of Encroaching Structure' 'conciliation Conference' 'agreed Orders']
['land and Environment' 'property Law'] ['encroachment' 'removal of Encroaching Structure' 'conciliation Conference' 'agreed Orders']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Class 3 Appeal Commenced Pursuant to S 3(1) of the Encroachment of Buildings Act 1922 / Orders Made Following Conciliation Conference Under S 34(1) of the Land and Environment Court Act 1979 and Agreement Between the Parties

Legal Issues

  1. 1 ['Whether the Court had jurisdiction under s 19(c1) of the Land and Environment Court Act 1979 and s 3 of the Encroachment of Buildings Act 1922.' 'Whether the steel flight of stairs and hand rails, landing, and awning constituted a building and an encroachment for the purposes of s 2 of the Encroachment of Buildings Act 1922.' "Whether the parties' agreed decision was one the Court could have made in the proper exercise of its functions under s 34(3) of the Land and Environment Court Act 1979."]

Ratio Decidendi

The Commissioner was satisfied that the Applicant was the adjacent owner, the Respondent was the encroaching owner, the relevant stairs, handrails, landing and awning were a substantial and permanent structure amounting to a building and encroachment, and s 3(2)(c) of the Encroachment of Buildings Act 1922 empowered the Court to order removal. Because the parties' agreed decision was one the Court could have made in the proper exercise of its functions, s 34(3) of the Land and Environment Court Act 1979 required the proceedings to be disposed of in accordance with that agreement.

Court Disposition

The appeal is upheld.

Orders

  • ['The appeal is upheld.' 'By 11 September 2024, the Respondent is to remove, at its own costs, the steel flight of stairs and hand rails, landing at the top of the stairs, and awning over the landing at the top of the stairs, attached to 59 Parramatta Road, Annandale, legally described as Lot 29 DP1023, which are...