The Uniting Church in Australia Property Trust (NSW) v Crowe [2024] NSWSC 1387

The Uniting Church in Australia Property Trust (NSW) v Crowe [2024] NSWSC 1387

Mr Crowe failed to establish any continuing entitlement, by estoppel, implied agreement, or licence, to occupy or build structures on the Church Trust's land. The historical grants did not bind the registered proprietor due to lack of registration and absence of mutual assumption in negotiations. The church's silence did not create such rights. Current encroachments (roof overhang and balcony) constitute continuing trespass and are not statute barred; deck as reconstructed in 2019 is a trespass. Church Trust is entitled to mandatory removal of the encroaching roof and balcony, and to damages for removal of the deck. Applications for transfer, easement, or s 88K rights by Mr Crowe are...

Parties
Plaintiff/cross Defendant: The Uniting Church in Australia Property Trust (NSW); Defendant/cross Claimant: Stephen Desmond Crowe
Jurisdiction
Australia
Judgment Date
31 October 2024
Procedural Posture
Civil / Principal Judgment After Trial; Orders Reserved Pending Agreement on Final Orders and Costs
Outcome
Plaintiff succeeds in trespass as to roof overhang, balcony and 2019 deck; mandatory injunction (and/or damages) to be formulated; Defendant's cross-claim dismissed.
Legal Topics
Trespass to Land, Limitation, Licence, Equitable Remedies, Mandatory Injunction, Encroachment of Buildings Act, Compulsory Easements, Estoppel by Convention, Proprietary Estoppel
Equity Real Property Torts Trespass to Land Limitation Licence Equitable Remedies Mandatory Injunction +4 more

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Parties

The Uniting Church in Australia Property Trust (NSW)

Plaintiff/cross Defendant

Stephen Desmond Crowe

Defendant/cross Claimant

Procedural Posture

Civil / Principal Judgment After Trial; Orders Reserved Pending Agreement on Final Orders and Costs

Legal Issues

  1. 1 Whether defendant entitled to occupy part of plaintiff's land (side yard) indefinitely by estoppel or implied agreement
  2. 2 Whether structures erected by defendant are continuing trespass
  3. 3 Whether limitation defences applicable to trespasses

Ratio Decidendi

Mr Crowe failed to establish any continuing entitlement, by estoppel, implied agreement, or licence, to occupy or build structures on the Church Trust's land. The historical grants did not bind the registered proprietor due to lack of registration and absence of mutual assumption in negotiations. The church's silence did not create such rights. Current encroachments (roof overhang and balcony) constitute continuing trespass and are not statute barred; deck as reconstructed in 2019 is a trespass. Church Trust is entitled to mandatory removal of the encroaching roof and balcony, and to damages for removal of the deck. Applications for transfer, easement, or s 88K rights by Mr Crowe are...

Court Disposition

Plaintiff succeeds in trespass as to roof overhang, balcony and 2019 deck; mandatory injunction (and/or damages) to be formulated; Defendant's cross-claim dismissed.

Orders

  • Proceedings adjourned for final orders, injunction or damages to be formulated; parties to attempt agreement; further hearing if not agreed.
  • Cross-claim by defendant dismissed; principal claim by plaintiff succeeds in part as indicated.