Campbell v Crane [2009] NSWSC 363

Campbell v Crane [2009] NSWSC 363

Most encroachments on 15 The Parade were minor and their removal was not warranted, but the subsoil drainage line had an unacceptable potential to discharge over the plaintiffs' land and had to be removed. Because relations between the parties were strained and an easement would likely require cooperation, the better course was conveyance of a narrow 0.3 metre strip along the eastern boundary of the plaintiffs' property to the defendant, with the defendant bearing conveyancing costs and paying compensation under s 4. The plaintiffs suffered minimal damage from the trespasses and were entitled to $6,500 damages, but aggravated or exemplary damages were not justified because the defendant...

Jurisdiction
Australia
Judgment Date
08 May 2009
Procedural Posture
Claims for Trespass and Relief Under the Encroachment of Buildings Act 1922 (nsw), With Cross Claim for Boundary Declaration or Conveyance, Transfer, Lease, Estate, Interest or Easement / Principal Judgment After Hearing
Outcome
Plaintiffs awarded damages for trespass; aggravated and exemplary damages refused; removal ordered for the subsoil drainage line; conveyance of a 0.3 metre strip to the defendant to be effected with compensation to be agreed or valued; short minutes directed.
Legal Topics
['encroachment on Neighbouring Property' 'trespass to Land' 'boundary Dispute' 'conveyance of Land Under Encroachment of Buildings Act 1922' 'damages and Compensation' 'removal of Encroachments']
['property Law' 'torts' 'civil Procedure'] ['encroachment on Neighbouring Property' 'trespass to Land' 'boundary Dispute' 'conveyance of Land Under Encroachment of Buildings Act 1922' 'damages and Compensation' 'removal of Encroachments']

Case Brief

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Procedural Posture

Claims for Trespass and Relief Under the Encroachment of Buildings Act 1922 (nsw), With Cross Claim for Boundary Declaration or Conveyance, Transfer, Lease, Estate, Interest or Easement / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether structures on 17 The Parade encroached on 15 The Parade and whether the encroachments should be removed.' 'Whether the defendant should pay damages for trespass, including aggravated or exemplary damages.' 'Whether the plaintiffs should convey a narrow strip of land to the defendant or grant an easement in respect of the encroachments.' "Whether the defendant should remove the subsoil drainage line from the plaintiffs' property." 'Whether compensation should be paid for the conveyance or transfer of the encroached strip.']

Ratio Decidendi

Most encroachments on 15 The Parade were minor and their removal was not warranted, but the subsoil drainage line had an unacceptable potential to discharge over the plaintiffs' land and had to be removed. Because relations between the parties were strained and an easement would likely require cooperation, the better course was conveyance of a narrow 0.3 metre strip along the eastern boundary of the plaintiffs' property to the defendant, with the defendant bearing conveyancing costs and paying compensation under s 4. The plaintiffs suffered minimal damage from the trespasses and were entitled to $6,500 damages, but aggravated or exemplary damages were not justified because the defendant...

Court Disposition

Plaintiffs awarded damages for trespass; aggravated and exemplary damages refused; removal ordered for the subsoil drainage line; conveyance of a 0.3 metre strip to the defendant to be effected with compensation to be agreed or valued; short minutes directed.

Orders

  • ["The defendant is to remove from the plaintiffs' property, 15 The Parade, Belmont, the subsoil drainage line." "The plaintiffs are to convey to the defendant a narrow strip 0.3 metres wide adjacent to and along the eastern boundary of the plaintiffs' property." 'The legal costs of both the plaintiffs and the...