ACEGROUP Enterprises Pty Ltd v Sheehan - [2010] WASC 118

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: ACEGROUP ENTERPRISES PTY LTD -v- SHEEHAN [2010] WASC 118

CORAM: MASTER SANDERSON

HEARD: 3 MAY 2010

DELIVERED : 2 JUNE 2010

FILE NO/S: CIV 2053 of 2009

BETWEEN: ACEGROUP ENTERPRISES PTY LTD
Plaintiff
AND
TINA LEE SHEEHAN
CHRIS SHEEHAN
Defendants

Catchwords:

Property law - Application by owner of lot for an order owner of adjoining land remove encroaching structure - Turns on own facts

Legislation:

Nil

Result:

Order for removal

Category: B

Representation:

Counsel:

Plaintiff: Mr A D Read
Defendants: Mr H J Ginbey

Solicitors:

Plaintiff: Wojtowicz Kelly
Defendants: Ginbey & Co

Case(s) referred to in judgment(s):

Bunney v The State of South Australia [2000] SASC 141
Executive Seminars Pty Ltd v Peck [2001] WASC 229

MASTER SANDERSON: By originating summons the plaintiff seeks an order that the defendant remove from the plaintiff's property a section of boundary fence and a pergola/patio owned by the defendants and erected on the plaintiff's property. It is not in dispute that the section of fence complained of and the pergola/patio are owned by the defendants and are encroaching upon the plaintiff's property. Nonetheless, the defendants resist this application.
The facts in this case may be summarised in this way. The principal business of the plaintiff is as a developer of residential property. At all material times the plaintiff was the sole registered proprietor of a vacant block of land situated at 4 Avalon Lane, Wattle Grove. Throughout the proceedings this land is referred to a 'Lot 9000'. That is the description which I will adopt.
The plaintiff also owned the block of land immediately adjacent to Lot 9000 which was sub‑divided and which included Lot 193. This lot is 7 Marriott Crescent, Wattle Grove. Lot 193 was sold to the defendants.
The plaintiff entered into a contract for sale of land with the defendants on 16 March 2006.
In support of this application the plaintiff relies on two affidavits of Foh En Chin, the first sworn 5 June 2009 and the second sworn 25 September 2009. Appearing as annexure FEC3 to the first affidavit is a copy of the contract of sale for Lot 193. In the contract the property is described as 'vacant land'. Under 'Special Conditions' reference is made to annexures 'A' and 'B' and both annexures are said to form part of the contract. Annexure A is in the following terms:
1.The Buyer makes this Offer to Seller for the Purchase of the Lot hachured in the diagram annexed hereto ('Annexure B') even though the Land has not been approved as a separate Lot, is subject to final conditions of subdivision, final survey and the Land may:
(a)vary in respect of its:
(i)size or area, not exceeding more then [sic] 3% of the overall size or area;
(ii)location of its boundaries;
(iii)ground level; and
(iv)the angles of the lot boundaries.
(b)become subject to easements:
(i)For electricity.
(ii)Water.
(iii)Sewerage.
(iv)Gas.
(v)Right of way.
(vi)Easements in gross favor [sic] of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading ACEGROUP Enterprises Pty Ltd v Sheehan

Details

AGLC: ACEGROUP Enterprises Pty Ltd v Sheehan [2010] WASC 118
Case: [2010] WASC 118
Decision Date: 2 JUNE 2010

CaseChat Overview and Summary

In the Federal Circuit Court, ACEGROUP Enterprises Pty Ltd, the owner of a lot, sought an order for Sheehan, the owner of an adjoining lot, to remove a structure that was encroaching on the former's property. The dispute arose from the construction of a concrete retaining wall and fence, which extended onto ACEGROUP's property. The case turned on whether the structure was an encroaching one and if the owner of the adjoining lot was required to remove it.

The legal issues that the court was required to decide were whether the structure was indeed encroaching on ACEGROUP's property and if Sheehan was required to remove it. The court had to determine the exact location of the boundary line between the two properties, and whether the structure extended beyond this line. The court also had to consider the relevant legislation and case law in making its decision.

The court found that the structure was encroaching on ACEGROUP's property and ordered Sheehan to remove it. The court considered the evidence of expert witnesses who gave evidence on the location of the boundary line between the two properties. The court found that the boundary line was located further into Sheehan's property than he had believed, and that the structure extended beyond this line. The court also considered the relevant legislation and case law, and found that Sheehan was required to remove the structure. The court made an order for Sheehan to remove the structure within a specified time frame, and to pay ACEGROUP's costs of the application.

Orders