Perpetual Trustees Victoria Ltd v Suncorp Metway Ltd and Amer El Nachar (No 2) [2009] NSWLEC 1416

Perpetual Trustees Victoria Ltd v Suncorp Metway Ltd and Amer El Nachar (No 2) [2009] NSWLEC 1416

Both applicant and first respondent are 'encroaching owners'; the encroachments affect both lots; removal enables parties to sell lots separately; neither party caused the encroachment but both benefit from removal; therefore, costs of removal and making good are to be shared equally between applicant and first respondent.

Jurisdiction
Australia
Judgment Date
15 December 2009
Procedural Posture
Application Under Encroachment of Buildings Act 1922 / Post Final Merits Determination, Orders Regarding Removal and Costs
Outcome
Orders to be made for equal sharing of removal costs; parties to file agreed set of orders; application for costs deferred to Registrar or Judge.
Legal Topics
['encroachment' 'removal of Encroaching Structures' 'apportionment of Costs' "court's Power Regarding Preservation of Property"]
['property Law'] ['encroachment' 'removal of Encroaching Structures' 'apportionment of Costs' "court's Power Regarding Preservation of Property"]

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Procedural Posture

Application Under Encroachment of Buildings Act 1922 / Post Final Merits Determination, Orders Regarding Removal and Costs

Legal Issues

  1. 1 ['Appropriate apportionment of costs for removal of encroachments' 'Proper method for contracting builder for removal' "Court's power to restrain transfer of property prior to removal" "Court's power to make costs orders"]

Ratio Decidendi

Both applicant and first respondent are 'encroaching owners'; the encroachments affect both lots; removal enables parties to sell lots separately; neither party caused the encroachment but both benefit from removal; therefore, costs of removal and making good are to be shared equally between applicant and first respondent.

Court Disposition

Orders to be made for equal sharing of removal costs; parties to file agreed set of orders; application for costs deferred to Registrar or Judge.

Orders

  • ['Applicant and first respondent to obtain fresh quotes from licensed builders for removal of encroachments and making good properties.' 'Work to be done by builder providing most cost efficient quote.' 'Applicant to provide access to builder.' 'Both applicant and first respondent to enter building contract; each...