Perpetual Trustees Victoria Ltd v Suncorp-Metway Ltd & Anor [2009] NSWLEC 1326

Perpetual Trustees Victoria Ltd v Suncorp-Metway Ltd & Anor [2009] NSWLEC 1326

The appropriate exercise of discretion under s3 of the Encroachment of Buildings Act 1922 is to order removal of the more substantial encroachments (laundry shed and carport) as they constitute a significant impediment to the sale of the Driveway lot, but not to require removal of the minor encroachments (eaves, gutters, air-conditioning unit) because their removal would be disproportionately costly and would serve no substantial practical purpose. The parties are to share costs of removal, unless otherwise agreed.

Parties
Applicant: Perpetual Trustees Victoria Ltd; First Respondent: Suncorp-Metway Ltd; Second Respondent: Amer El Nachar
Jurisdiction
Australia
Judgment Date
06 October 2009
Procedural Posture
Application Under Encroachment of Buildings Act 1922 / Judgment After Hearing
Outcome
Partial relief granted; orders for removal of laundry shed and carport encroachments to be agreed, minor encroachments to remain.
Legal Topics
Encroachment, Mortgages, Title Defects
Property Law Encroachment Mortgages Title Defects

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Parties

Perpetual Trustees Victoria Ltd

Applicant

Suncorp-Metway Ltd

First Respondent

Amer El Nachar

Second Respondent

Procedural Posture

Application Under Encroachment of Buildings Act 1922 / Judgment After Hearing

Legal Issues

  1. 1 What orders should be made regarding building encroachments from one mortgaged lot onto an adjacent mortgaged lot owned by different mortgagees in possession.
  2. 2 Whether encroaching structures (eaves, guttering, laundry shed, carport) should be removed or remain subject to compensation under the Encroachment of Buildings Act 1922.

Ratio Decidendi

The appropriate exercise of discretion under s3 of the Encroachment of Buildings Act 1922 is to order removal of the more substantial encroachments (laundry shed and carport) as they constitute a significant impediment to the sale of the Driveway lot, but not to require removal of the minor encroachments (eaves, gutters, air-conditioning unit) because their removal would be disproportionately costly and would serve no substantial practical purpose. The parties are to share costs of removal, unless otherwise agreed.

Court Disposition

Partial relief granted; orders for removal of laundry shed and carport encroachments to be agreed, minor encroachments to remain.

Orders

  • The parties are to file agreed draft orders for removal of the laundry shed and carport encroachments by 19 October 2009.
  • The matter is set down for mention on 21 October 2009 for further directions if not resolved.