Campbell v Crane [2013] NSWCA 43

Campbell v Crane [2013] NSWCA 43

The appeal failed because Orders 7 and 8, properly understood in context, contemplated only compensation based on three times the value of the 0.3 metre strip, possibly with any special value, and not an open-ended assessment of alleged consequential loss under s 4(2)(b). Order 8 was not a UCPR reference and there was no binding expert agreement, but the appellants were bound by the way they conducted their case: they did not prove any additional s 4(2)(b) loss at trial, did not seek to reopen after the proposed conveyance order became clear, and could not later rely on the expert process to introduce that case to the respondent's prejudice.

Jurisdiction
Australia
Judgment Date
06 March 2013
Procedural Posture
Appeal Concerning Orders Under the Encroachment of Buildings Act 1922 Arising From Neighbour Encroachments and Compensation / Court of Appeal; Appeal From Orders Including Dismissal of a Notice of Motion and Compensation Orders
Outcome
Appeal dismissed with costs.
Legal Topics
['encroachment on Neighbouring Property' 'trespass' 'conveyance of Subject Land' 'compensation Under the Encroachment of Buildings Act 1922' 'reference to Expert or Referee' 'parties Bound by Conduct of Case']
['real Property' 'civil Procedure'] ['encroachment on Neighbouring Property' 'trespass' 'conveyance of Subject Land' 'compensation Under the Encroachment of Buildings Act 1922' 'reference to Expert or Referee' 'parties Bound by Conduct of Case']

Case Brief

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Procedural Posture

Appeal Concerning Orders Under the Encroachment of Buildings Act 1922 Arising From Neighbour Encroachments and Compensation / Court of Appeal; Appeal From Orders Including Dismissal of a Notice of Motion and Compensation Orders

Legal Issues

  1. 1 ["Whether the primary judge's orders of 2 June 2009 required compensation beyond three times the value of the land conveyed by reference to s 4(2) of the Encroachment of Buildings Act 1922." 'Whether Order 8 amounted to a reference under UCPR Part 20 Division 3.' 'Whether the parties agreed to submit the compensation issue to an expert whose determination would bind them.' 'Whether the appellants could rely on later evidence of alleged costs and building-code consequences to obtain compensation exceeding the minimum without having run that case at trial or applying to reopen.' 'Whether orders made on 6 April 2011 and 2 September 2011 should be set aside.']

Ratio Decidendi

The appeal failed because Orders 7 and 8, properly understood in context, contemplated only compensation based on three times the value of the 0.3 metre strip, possibly with any special value, and not an open-ended assessment of alleged consequential loss under s 4(2)(b). Order 8 was not a UCPR reference and there was no binding expert agreement, but the appellants were bound by the way they conducted their case: they did not prove any additional s 4(2)(b) loss at trial, did not seek to reopen after the proposed conveyance order became clear, and could not later rely on the expert process to introduce that case to the respondent's prejudice.

Court Disposition

Appeal dismissed with costs.

Orders

  • ['Appeal dismissed with costs.']