Amatek Limited v Googoorewon Pty Limited

[1993] HCATrans 15

~ j~~

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl02 of 1992

B e t w e e n -

AMATEK LIMITED

Appellant

and

GOOGOOREWON PTY LIMITED

Respondent

MASON CJ
BRENNAN J
DAWSON J
GAUDRON J

MCHUGH J

Amatek(2) 1 9/2/93

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 9 FEBRUARY 1993, AT 10.18 AM

Copyright in the High Court of Australia

MR G.K. DOWNES, QC:  In this matter, if the Court pleases, I

appear with my learned friend,

MR M.J. SLATTERY, QC, for the appellant.

(instructed by Sly and Weigall)

MR A.R. EMMETT, QC:  May it please Your Honours, I appear

with my friend MR R.A. PARSONS, for the respondent.

(instructed by Ferrier & Associates)

MASON CJ: Yes, Mr Downes.

MR DOWNES:  Your Honours, can I hand up our written outline

wholly on an adjacent owner's land or whether it only applies to a building built across the boundary.

and provide copies for my friends. This case erected
raises the question of whether the New South Wales

The facts, Your Honours, are in short compass

and are not in dispute and I apprehend that
Your Honours in any event are aware of them. It

may just be convenient if I draw Your Honours'

attention to two plans which appear at pages 32 and

33 of the appeal book, and which put the context in

which this case arises in a readily observable

form.

Your Honours will see, if Your Honours look at

page 32, that the numbers 17 and 18 appear on the

plan. Lot 17 is the appellant's lot. Lot 18 is

the respondent's lot. The heavy line almost

vertical on page 32 is the true boundary between

the two lots. The broken oblique line with the

words "post and wire fence" written along it is the

fenced line which is the external part of the area

which de facto has been occupied by the respondent.

BRENNAN J: Does that mark the boundary of the parcel of

land which the respondent seeks?

MR DOWNES:  I believe that is the position. The claim by

the respondent, in its summons, is for a transfer

of a substantial parcel of land and I believe, as I

think about it, Your Honour, that there is an

annexed to the summons the same plan that

Your Honours are looking at, and that appears at

page - it is perhaps not the same, but it is

similar - that appears at page 4, and it is

apparent that the area, the triangular area, is

coloured in some way, and the actual relief sought

in paragraph 1 is order for the transfer of the

land referred to in the schedule.

BRENNAN J: Well, we can take it that that is the parcel,

can we?

Amatek(2)	2	9/2/93
MR DOWNES:	That is the parcel.	Your Honours will see that

at its northerly point, or in any event at the top
of the page, the line of the fence meets the true

boundary, and at the bottom of the page, the line

of the fence is 134 meters on the appellant's land.

There is what is noted as a building erected

between 66.3 and 45.4 meters on the appellant's

land, which is the most substantial building on the

land. The remaining relevant facts setting out

what is on the land appear at page 158 of the

appeal book, between lines 4 and 17.

Suffice it to say that one goes from the

timber building shown on the plan at one end of the

scale of the items on the land down to, at the

other end of the scale, simply pots of plants

standing physically on the land for the purpose of,

I suppose, one, display for sale and, secondly, for

the purpose of growing them in the pots in situ.

So that one has a range of things on the land.

Only the timber building is a structure which

one would describe perhaps, in using a narrow
meaning of the word "building", as a true building.
Some of them, such as polyethylene pipe, on no

measure of the authorities, could be understood as

buildings, and certainly that part of the land

which is taken up by having on it pot plants could

not be said to have on it, on any view of the

authorities, buildings.

Your Honours, with that introduction to the

facts, could I take Your Honours straight to the

Act itself.	We did make available yesterday prints
of the Act.

MASON CJ: Yes, we have it.

MR DOWNES:  Your Honours, the Act is very short. I just

wish to take Your Honours if I may to some sections

of it and I will point out what, in our respectful

submission, are relevant matters as I go through.

The long title of the Act is:

An Act to make provision for the adjustment of

boundaries where buildings encroach on

adjoining land; to facilitate the

determination of boundaries; and for purposes

connected therewith.

Your Honours will see in due course that in so far

as this Act is concerned with the determination of

boundaries, it is concerned with something which is

not relevant to the facts of this case at all. The
relevant part of the Act to which reference can be

made for present purposes are the words:

Amatek(2) 3 9/2/93

provision for the adjustment of boundaries

where buildings encroach.

We would point, first of all, to the fact that

the phrase is "buildings encroach", and we would

respectfully submit that this long title is just

one aid to many that we will be relying upon to

support the construction for which we contend,

which shows that what is really being sought here

is not any adjustment of boundaries which is

contemplated by this Act.

Can I anticipate one matter which arises again

and again in this legislation and which, we would

respectfully submit, is quite important to an

ultimate resolution of the issue? Your Honours

will see that the Act talks about "where buildings

encroach", and it is our respectful submission that

this Act, in the plainest of possible terms, limits

itself to encroachment by buildings, and it is to

be distinguished from, for example, encroachment by
people for the purpose of erecting a building which

is what sometimes is struck down or dealt with in

other legislation. Here, by statutory definition,

the encroachment that is being spoken of is the

encroachment of a building.

Your Honours, then one goes to the definition

sections which aid, we would respectfully submit,

this approach:

"Adjacent owner" means the owner of land over

which an encroachment extends.

Now, the word "encroachment" there must be a

reference to the word "encroachment" as defined in

this Act:

"Boundary" means the boundary line between

contiguous parcels of land.

So the Act shows the boundary is a significant fact

in what the Act deals with.

"Building" means a substantial building of a

permanent character and includes a wall.

"Court" means the Supreme Court -

and I do not need to take Your Honours further to

that.

"Encroaching owner" means the owner of land

contiguous to the boundary -

so, one has here the statutory reference again to

the boundary -

Arnatek(2) 4 9/2/93

beyond which an encroachment extends.

So one has to have a boundary and an encroachment,

we would respectfully submit, is a matter of

ordinary English, which exists at the point of the

boundary and goes beyond the boundary.

Then, Your Honours, perhaps the most

significant definition, because it puts meaning to

definitions that have gone so far:

"Encroachment" means encroachment by a

building -

so, when one goes back to "adjacent owner" and it

talks about talks about:

land over which an encroachment extends.

With respect, "encroachment" being encroachment by

a building, it cannot be referring to anything

other than the land under the building.

When one looks at "encroaching_owner", it

means:

the owner of land contiguous to the boundary

beyond which an encroachment extends.

With respect, having regard to the meaning of

"encroachment", namely encroachment by a building,

it must be a reference simply to the building

extending beyond the boundary.

Now, the definition of "encroachment" does go

on to say it:

includes an encroachment by overhang of any

part as well as encroachment by intrusion of

any part in or upon the soil.

One imagines that legislative reason for inserting

that provision is to make it plain that if a
building, in terms of its whole structure, is on the land of the encroaching owner, with only the

eaves and some part of a basement, or something or
other of that sort, intruding across the boundary,

that any doubt as to whether that is an

encroachment or not is cleared up by a definition

which makes it plain that overhang and the

intrusion onto the soil is encroachment.

"Owner" is then defined. I do not need, I

think, to take Your Honours to that. And then

finally:

Amatek(2) 9/2/93

"Subject land" means that part of the land

over which an encroachment extends.

So we would respectfully submit consistently with

everything else in the section, "subject land" must

mean the land immediately underneath the building.

Well now, the enabling section, Your Honours,

is section 3(1):

Either an adjacent owner or an encroaching

owner may apply to the court for relief under

this Act in respect of any encroachment.

And then one comes to what relief can be granted

and the jurisdiction to grant the relief is, in a
sense, described in terms of the relief that can be

granted, a matter which His Honour

Mr Justice Mahoney notes in his judgment.

(2) On the application the court may make such

order~ it may deem just with respect to -

(a) the payment of compensation -

and for relevant purposes, now:

(b) the conveyance transfer or lease of the

subject land to the encroaching owner - now, "subject land" means:

that part of the land over which an

encroachment extends -

"Encroachment" means encroachment by a

building -

and so, we would respectfully submit, by the

plainest possible means, this Act compels the

conclusion that what can be conveyed or transferred

is the land underneath the encroaching building and

not more, subject to the further words that I will

now go on to:

or the grant to him of any estate or interest therein or any easement right or privilege in relation thereto.

Now, as I read the judgment of

Mr Justice Clark in which the President agreed,

Their Honours did not really determine exactly what

was the extent of the power given by 3(2)(b). Nor,

in a sense, did Mr Justice Mahoney, but

Mr Justice Mahoney did go far enough to say that

easements and rights could be granted in relation

to a transfer and that that might provide the

Amatek(2) 6 9/2/93

answer to what would otherwise be a transfer of

land in a land-locked situation if the construction

of the Act for which I contend is applicable.

We would accept that there are circumstances

in which easements might be appropriate and would

be granted and would, for example, be plainly in

relation, using the words in the second-last and

last lines of 3(2)(b). An example might be a

building erected across a boundary in circumstances

in which it is necessary for the encroaching owner,

from time to time, to gain access to the far wall

of the building on the adjoining land. He might be

given some easement right or privilege which, for

example, would allow him to go to the far wall for

the purpose of painting it from time to time or for

some similar purpose.

But to say that one can go from a transfer of the land under the building to what is sought here,

namely, some legal right to have pipes across the

land, to have sprinklers over the land, to have

pots on the land, and so forth, we would

respectfully submit on no view of section 3(2)(b)

could be justified.

DAWSON J: It is curious that (2)(b), does not seem to allow

the rearrangement of the boundaries. If the house

extends over the boundary the subject land is

merely the land occupied by the house, and you

cannot, as it were, give a whole sliver.

MR DOWNES:  The boundary is rearranged in an irregular way,

as I would see it, Your Honour.

DAWSON J: Yes, that is curious, but that seems to be the

way it operates, and "right" presumably does not

include rights of ownership.

MR DOWNES:  We would respectfully submit not. It is not

expressio unius, but the way in which ownership is

transferred is plainly explained in the earlier, we
would respectfully submit, part of the section.

So we use the section first of all to say whatever view one takes of 3(2)(b), it cannot

justify the kind of transfer that is being sought

here. But more importantly, we use it in aid of

the construction argument which we seek to derive

from the Act as a whole and, in particular, from

the definition sections and from section 3(2)(b),

namely, a construction which confines this Act to

operation where buildings cross boundaries.

Subsection (3) sets out some circumstances

that can be taken into account: situation and

value, character of the encroaching building, loss

Amatek(2) 7 9/2/93

and damage on both sides and circumstances.	I do
not think I need to read Your Honours that in
detail.

Section 4 deals with compensation, and

although compensation is ultimately, if it comes to it, claimed in the present case, it is not a matter

which will concern Your Honours. There is a ground

in our notice of appeal, ground 6, which raises

issues of negligence and the like. The result in

the Court of Appeal was that the matter was sent back to the Equity Division. And we accept that the re·sul t here appropriately is that Your Honours

determine the issue of principle. If that issue is
determined in our favour the appeal to this Court

will be upheld, and the order made by the trial

judge would be reinstated, and subject to matters

of the working out of that order, the proceedings

will be finally disposed of in this Court.

If on the other hand Your Honours uphold the

Court of Appeal decision, then the matter pursuant to the decision in the Court of Appeal must go back to the Equity Division. As the trial judge approached the matter on a wrong basis and the
Court of Appeal took the view that His Honour had

dealt with again in the Equity Division.

not really explored all of the matters that were

appropriate to an exploration of the issues as the

So the upshot of that is that although, if

Your Honours dismiss the appeal, issues under

sections such as section 4 will remain relevant in

the proceedings when they go back to the Equity

Division, except to the extent to which reference

to section 4 is relevant to an overall

understanding of the Act and arises in that way in

this appeal, Your Honours will not need to be

concerned with it.

Section 5 I should take Your Honours to. It

provides for a charge, but the only purpose of
taking Your Honours to it is to ask Your Honours to

note section 5(2):

land of the encroaching owner means the parcel

of land contiguous to the boundary beyond

which the encroachment extends -

In section 9, the Act begins to address boundaries.

Your Honours will recollect the second part of the

long title:

(1) Where any question arises whether an

existing building encroaches or a proposed

building will encroach beyond the boundary,

Arnatek(2) 8 9/2/93

Replacement Page

~~ ... ::,.3:.~.~92 ..... c:u

either of the owners of the contiguous parcels
of land may apply to the court for the

determination under this Act of the true

boundary.

So the extent to which the Act deals with

determination of boundaries, it is simply the

determination of what is in fact the true boundary.

MASON CJ:  But section 9 would not confer jurisdiction in a

case like this, on the argument you are presenting

to the Court.

MR DOWNES:  No, Your Honour, it would not. We simply rely

on the words of section 5(2) and of 9(1) as further

support for the contention we are putting.	One
needs to have a proposed building which will
encroach beyond the boundary.	Your Honours, I

think there are some general enabling provisions in

sections 10 to 15, but I do not think I need to

take Your Honours to them.

It is our respectful submission that in the

plainest of terms without ambiguity, the words of

the legislature compel a construction as we here

propound it. However, Your Honours, we would seek

to support that construction by other means as

well.	The first of those is by reference to
dictionary definitions.	I am not going to weary

Your Honours by reading in great detail dictionary

definitions. I think they are, broadly speaking,

reproduced again and again in the judgments in any

event.

I have handed up to Your Honours the definition of both "encroach" and associated words

and "extend" in the Macquarie Dictionary and in the

Oxford English Dictionary.	We respectfully submit
that a reference to them supports the proposition

that one has to have a starting point beyond which

something extends to have an encroachment. The

encroachment must be linked back to the starting

point; in this case the boundary.

BRENNAN J:  Not the boundary, you would say, I would take

it, but the land of the encroaching owner?

MR DOWNES:  Yes, Your Honour. Now, the dictionary

definitions are not wholly helpful because they
contemplate, as is obviously a possibility in

general discourse, that the encroachment is being

talked about in terms of the activities of a

person, rather than the situation of a building.

Here, one, by statute, is confined to the situation

of the building, but by analogy, we would

respectfully submit, one gets the same idea.	I
think the word goes back to maybe their common

Amatek(2) 9 9/2/93

roots, but the current French word "accrocher",

which means "to hook", and that finds its form in

English in the sewing or knitting kind of pursuit called crocheting, which involves a hook, but I do not know if this is a bit too colourful to extend

the basis upon which we seek to ask Your Honours to look at the definition, that the crocheter has

the hook attached to her hand. So we see all these

definitions as coming back to a point from which

the encroachment extends, moves out by stealth, et

cetera.

Your Honours, we would respectfully submit

that the dictionary definitions are an aid to the
construction upon which we rely. At some parts of

the judgments, reference is made by the judges to the decision of Earl of Lisburne v Davies, (1866)

1 LRCP 259. This case is relied upon to suggest

that encroachment can arise in circumstances in

which there is something intervening between the

encroachment and the land to which the encroachment

relates.

The case, Your Honours, is concerned with a

proposition, no doubt well rooted in the philosophy of English property law, which in effect said that,

when a tenant gathers in by his activities land

around the land of the landlord, the land to which

title is gained by this activity enures not to the

tenant but to the landlord.

This case is concerned simply with that common

law doctrine which I think is somewhat

anachronistic and wholly irrelevant in the present

day. It is not a case which is the slightest bit

concerned with the meaning of the word

"encroachment". Indeed, if one looks at the case,

and looks at some of the other cases that are

relied upon in the same line, one will see the use

of the word "enclosed" appearing much more

frequently than the use of the word "encroachment".

In Earl of Lisburne v Davies itself I cannot

find, in the speech of Chief Justice Erle, any

reference to the word "encroachment". He rather

uses the word "enclosed", as appears at page 265

point 3 of the page.

BRENNAN J: But is this going to be of any assistance to us?

I mean, you would have to concede, would you not,

that in cases dealing with this principle relating

to the title acquired by the reversion or on the

giving up of the tenancy, encroachment has been

used where the land, which the tenant has assumed,

is land which is not contiguous to the principal

holding?

Amatek(2)	10	9/2/93
MR DOWNES:	Yes, Your Honour.	But I pick up Your Honour's

first words that the very purpose of my submission

is to satisfy, if I can, the Court that this case

is not going to be of any assistance in
determination of the appeal before the Court.

However, it is an authority that has been relied upon below and relied upon to some effect.

MASON CJ: Would it not be better for you to ascertain what

your opponent is going to say about it and hold

your fire until he has replied?

MR DOWNES:  Yes, if Your Honour pleases. So, Your Honours,

anticipating then, we would respectfully submit,

that what appears in the Earl of Lisburne's case

and other similar cases in no way cuts across the

submissions that we seek to put.

Now, Your Honour, the Act was enacted, as

Your Honours will have seen, in 1922 and has not, I do not think, been amended even once since that

point of time, and has been the subject of many
decisions, not a lot for obvious reasons reported

since that time. There is no reported decision in

which it has been decided that the Act can apply in

circumstances in which there is a building erected

wholly on adjoining land, nor do I know, for what

that is worth, of any decision unreported to that

effect. There are, however, a number of decisions

all of single judges in which, either by way of

observation obiter or by way of the precise holding

in the case, it has been decided that the Act

cannot apply to buildings erected wholly on

adjoining land.

Your Honours, the first of the decisions and

the one on which we respectfully submit is

precisely in point of principle with this case is

the decision of Mr Justice Holland in LDJ

Investments Pty Limited v Howard, (1981) BPR 9614.

Now, Your Honours, I am not going to take a great

deal of time on the case, but part of the problems

of these cases is really understanding the facts.

This case involved a strata home unit

building. It involved in particular the parking spaces. The parking space of one owner, in fact,

when you looked at the plan, was L-shaped.

However, from a point of time prior to the time

when either owner owned their units there was a

wall across, what is described in the case, as the

foot of the L - the ankle I suppose - which had the

effect of giving the - I will call him for the

moment "the encroaching owner" - access to the foot

of the L, which belonged to the adjoining owner,

along with the leg.

Amatek(2) 11 9/2/93

Now, this wall was built entirely within the

lot. It went up to the common property which is

what the wall either side of it represented, but

did not intrude across. So it was, from the point

of one boundary across to the point of another

boundary, but for present purposes neither boundary

was of land belonging to the other owner, it was to

the common property. But the fact is the wall was

wholly on the land. Now, in defensive proceedings

to a claim for possession the encroaching owner

claimed that the wall was an encroaching within the

Encroachment of Buildings Act and he was entitled

to relief.

Now, notwithstanding the clearest possible

preference on the part of the judge for the case of
this claim by the encroaching owner, His Honour

goes as far, at page 9616, to say - this is about

point 3 of the page:

Unfortunately for the defendant, the property

law is coldhearted and whilst he may have the

merits in his favour - I think he does - he

does not have the law.

So, His Honour had no hesitation is stating where

he thought, broadly speaking, the merits lay, but

in the second-last and last paragraphs, he said:

One result here is that the whole of the wall which cuts the plaintiff's area into two

is within his own boundaries. To put it

another way, the wall stands wholly on land of

which the plaintiff is registered proprietor.

That seems to me to make it impossible to

treat it as an encroachment, either in the

ordinary sense of the word or within the

meaning of the Encroachment of Buildings Act

where the word "encroachment" is defined to

mean -

and he sets it out.

The word "building" is defined to include a wall but even then the concept is of one

owner's wall crossing his boundary into

another's land. Here the wall is virtually

freestanding on the plaintiff's own land.

The defendant has a further problem. To

seek relief under the Act he has to be an

"encroaching owner" -

and then he sets out the definition of "encroaching

owner":

Amatek(2) 12 9/2/93

If this wall is an encroachment and is

contiguous to the lands under the walls

against which it abuts, it is contiguous to

land of which the defendant is not the owner

and so he is not an "encroaching owner" within the Act and has no right to relief. If anyone

could be said to be an encroaching owner here

it would probably be the Body Corporate - Anyhow, he goes on to say:

I do not think this is a case of encroachment

at all.	I agree with the observations of
counsel for the plaintiff:	"The real contest

here is over who is to have the use of the

disputed area, not over one man's building

intruding on another's land". The conclusion

must be that the Encroachment of Buildings Act

cannot aid the defendant.

His Honour, notwithstanding, as I say again,

his view of the merits, goes so far as to say at
9618 at point 7 of the page that "the truth is that
the defendant never really had a chance of

success". So that, we would respectfully submit,

is a strongly held and correct view on the part of

His Honour Mr Justice Holland.

In the Supreme Court of South Australia, in

Bolton v Clutterbuck the issue arose in a slightly

different way. That case began with one parcel of

land and two buildings erected on it. For reasons

which are difficult to understand, although

everyone knew what was happening, the owner of the

whole land sold a portion of the land which had the

whole of one building on it and a small portion, I

think about 6 feet, of the other building on it.

In due course, the second parcel of land was sold

and sold to someone who knew at the time he bought

it that only, say, 90 per cent of the building on

the land he was buying was erected on the land.

The way in which His Honour Mr Justice Ross in

the South Australian Supreme Court determined the
matter was, in effect, to say there was no

encroachment because the building above the land of

each owner belonged to the owner and so no

encroachment, in effect, arose. In other words,

this was like a terraced building and the dividing

line happened to be where the boundary was. That
is perhaps a view of the section, which is a view

which is slightly difficult to accept, because one
would have thought that the ordinary effect of the

common law would be to give title to the building

which was on an adjoining owner's property. But

that does not stand in the way, of course, of the

Amatek(2) 13 9/2/93

legislative will expressed in the Encroachment of

Buildings Act.

His Honour did, however, make some

observations, and they relevantly appear at

page 264, starting half-way down the page:

It is clear, however, from the definition in

the Act and from the manner in which the word

encroachment is used in the operative portion

of the Act that for the Act to apply there

must be an intrusion in some way by the

building of the encroaching owner on to the

land of the adjacent owner.	The same central
idea of intrusion is common -

to dictionary definitions, and then His Honour goes
to the dictionary definitions, and I refer

Your Honours to that but do not read it.	Then he
says at the bottom of the page:

This element of intrusion is not easy to

discover on the facts of this case.

Three lines down from the top of the next page:

Mr Phillips conceded that the portion of the

building which is on or over Block D became

the property of Mrs Clutterbuck upon

registration of the transfer.

And, then His Honour concludes that in those

circumstances no encroachment.

He then goes on to consider another argument which - it may be slightly difficult to see how it

arises in the light of the first conclusion, but

that argument is an argument that, in effect, too

much of the building is on the adjoining land for

it to be an encroachment. His Honour there appears to accept an argument

that a smaller amount of building might have given

rise to an encroachment. But, he says at about

point 4 of the page:

here, over a quarter of the southern building

is alleged to encroach;

and therefore, no encroachment.

The proposition that we seek to get from this

case is; one, we seek to rely upon the
observations made by His Honour that I have read to

Your Honours, on page 264, and secondly, to rely on the reasoning on 265 which is to this effect: if

more than a little bit of the building encroaches,

Amatek(2) 14 9/2/93

there is no encroachment within the Act. If that

is so, then of course the case of a whole building

is obvious. So, that is the second of the cases in

which the issue has arisen.

Your Honours, the third of the cases that I

would take Your Honours to is the decision of the

New South Wales Court of Appeal in Cuthbert v

Hardie. That case is largely concerned with, and

may at some point of time be relevant in these

proceedings, to the question of what constitutes a
building. Broadly speaking, the court said the

original coping or concrete walkway area around the

swimming pool, that was a substantial structure,

amounted to encroachment or could amount to an

encroachment. But, some tiles tacked on to it and

a pump tacked on could not amount not amount to

encroachment. That was a question of the meaning
of "building".

MASON CJ: What significance does this case have for the

question here?

MR DOWNES:  The statement made by Mr Justice Hope, agreed in

by the Chief Justice and Mr Justice Clarke at

page 324B in 17 NSWLR:

The present context is a context which is

essentially concerned with the boundaries

between allotments of land and the problems

which arise when something is built which

extends beyond the boundaries of the land on

which it is intended to be built.

That, we would respectfully submit, supports the approach for which we contend.

Your Honours, there are two further decisions.

One is an unreported decision of

Mr Justice Hodgson.	I will not take Your Honours
to it, although I will give the references, and can
I hand that up.	The case is Einfeld v Cohen, but

if Your Honours look at the title of the case

appearing on page 1 - the identity of the plaintiff

is absolutely irrelevant to anything which arises

in this case though, I must say. The relevant

passages in the decision are at page 4 point 2;
page 5 point 5, and support the contention on which

we rely. Finally, Your Honours, the only textbook

statement we can find on the matter is in the

Butterworth's Conveyancing Service - and can I hand up the relevant extract from that - where the

editor, who is in fact, Mr Justice Young of the

supreme court, says:

The authorities show that the act only applies

if some part of the offending building is on

Arnatek(2) 15 9/2/93

or overhangs an adjoining owner's land. It

does not apply where there is a wall or

building wholly on one owner's land.

BRENNAN J: Where is that, Mr Downes?

MR DOWNES:  I am sorry, Your Honours. It is the last four

lines of the second paragraph on the first page of

the document I handed up to Your Honours.

BRENNAN J: Yes, thank you.

MR DOWNES:  Your Honours, our submission then is that cases

to the extent to which they exist support our

contention. We would also respectfully submit that

a purposive approach to the section does not yield

any different contention. In this regard, we would

seek to hand up to Your Honours, for use if it

becomes relevant under section 34 of the New South

Wales Interpretation Act, the second reading speech

in the House of Assembly in 1922.

MASON CJ: What do you mean, "if it becomes relevant"?

MR DOWNES:  Because our respectful submission, Your Honour,

is that the Act is sufficiently clear and

unambiguous that the Court will conclude that no

occasion to refer to the second reading speech

arises. If one does, however, refer to it, what

one finds is that the speech of the attorney is

concerned wholly with small encroachments in the

conventional sense in which we respectfully submit
the Act applies.

One gets that from much of the speech, but in particular from the bottom of page 1784 and 1785.

Mr Ley relates an occasion relating to himself personally in which he suffered a disadvantage as a result of a claimed encroachment of the kind I am	talking about and he gives another three examples	in a similar vein in the left-hand column on
page 1785.

In the right-hand column at 1785 is a passage

which is set out twice, I think, in the judgments.

I will not read it to Your Honours, but it is the

passage beginning, "The House will see that",

starting on line 4 on page 1785 and concluding

about half-way down the page, "he will have to meet

his neighbour in a reasonable spirit."

That, Your Honours, together with further

references to encroachments amounting to inches and

feet and so forth, we would respectfully submit

that the whole flavour of the second reading speech is associated solely with encroachments of the kind

we contend the Act is confined to. So we would

Amatek(2) 16 9/2/93

respectfully submit that to the extent to which it

is appropriate to go to the second reading speech,

the submissions that we put are assisted.

Plainly, the Court will construe the Act in

accordance with principles now enunciated, for

example, by Your Honour Mr Justice McHugh in

Kingston's case in the Court of Appeal, and by reference to provisions such as section 34. But as Your Honour observed in that case, it is still ultimately a matter of construction and here, it is

our submission that the construction is so plain

that no occasion to look outside the Act is

appropriate, and reference to the internal context

of the Act leads to only one conclusion .

BRENNAN J: Mr Downes, if you wish us to refer to a case to

..... New South Wales - - -

MR DOWNES:  I am going to give Your Honours the reference to

it now.	The decision is Kingston v Keprose, (1987)
11 NSWLR 404,	The facts of the case are not, I

think, material but His Honour Mr Justice McHugh

made some observations at pages 421 and following

as to what His Honour headed "the modern approach

to statutory construction".

Your Honours, we would respectfully submit

that, even giving what there appears full weight,

there is no occasion here to go past what is the conclusion to which we would respectfully submit

one is led by the words that I have taken the Court

to. In particular, none of the categories, for

example, on page 22 are here satisfied. And most

importantly, we would note that what the Court was

there doing, and what courts mostly are doing in
these contexts, is looking at one section of an Act

and seeing if a construction, which does not fit

well with the purpose of the Act as a whole, is the

correct construction of the Act.

What Your Honour says, when Your Honour

ultimately deals with what should be done, the

purposive approach, at page 423, is to say at the
bottom, what one does is examine the statute as a

whole - that is the very second-last line of that

page. That, we would respectfully submit, is

exactly the process which we are inviting the Court

to undertake here. So we would respectfully submit

that a purposive approach yields no different

result, and if one looks at the old idea of the

mischief, then again that leads to the same result.

Now, can I take Your Honours briefly to the

reasoning of Mr	Justice Cohen which we, with
respect, submit	is correct and ought to be followed
by this Court.	First of all, at page 168, after

Arnatek(2) 17 9/2/93

His Honour has dealt with some of the cases, like

the Earl of Lisburne, His Honour says, at line 18

on page 168:

It will be noted that the prohibition is

against a person from encroaching by erecting

a building.

An encroachment by a person is also dealt

with under English law when dealing with

encroachment on waste land by a tenant, for

instance by enclosing it.

So His Honour distinguishes encroachment of

building from encroachment by a person. He does

the same again at page 169 at line 7, that short

paragraph, and again at 172 at line 22. Then

His Honour comes to the ultimate reasoning at 175. He has just set out the passage at the top of 175,

or part of it, from the Attorney-General's second

reading speech, and says:

That passage, and other parts of the

Attorney-General's speech indicate that one of the mischiefs which the bill was intended to correct was the absolute liability of an owner who erected a building on his land but caused

it to overlap the boundary. That intention as

shown in the debate will give assistance to

the Court but will not confine it .....

That this apparent intention was put into

effect however, seems to be supported by the

provision as to who can make a claim ..... The

definitions of "adjacent owner" and

"encroaching owner" refer to the land over

which or beyond which the encroachment

extends. Similarly judgment of

Hope AJA ..... in Cuthbert v Hardie -

and he quotes Mr Justice Hope, then he refers to

Mr Justice Holland:

The Act therefore was intended to apply only

to an owner who building was meant to be on

his own land but which, although partly on that land, extends across to the adjoining land. I do not consider that it was intended

to nor does it provide for buildings that had

inadvertently been erected wholly on

neighbouring land nor was it intended to

provide for the compulsory transfer ..... In the

present case, for example, the scale plan

which is part of one of the exhibits shows

that the substantial timer building is more
than 50 metres from its nearest point to the

boundary and closest of the structures, apart

Amatek(2) 18 9/2/93

from the piping, is over 40 metres from the

plaintiff's land.

BRENNAN J: According to that map it is 45 metres from the

building. Is that not a different building from

which the measurement has been taken? It is a

small mater but His Honour says "40 metres" and the

map which you showed us on page 32 says 45.

MR DOWNES:  Yes, well I think what His Honour is saying here

is that, broadly speaking, the building is 50

metres and other things, apart from the building,

with the exception of the piping are at least

40 metres.

BRENNAN J: Yes, I see.

MR DOWNES:  If Your Honours were to go to the facts of this

case, Your Honours would see that what the
respondent wished to do was to locate the nursery

around a particular area of land and, in one sense,

if one looks, there has never been any attempt to

have access to the land from the encroaching

owner's land. As Your Honour saw, what is

described in the evidence as a "rough track" goes

from the road, wholly on the respondent's land, to

this point where, there is no doubt, as far as the

respondent was concerned, was the most convenient

place to locate the nursery. No doubt the nursery·

covers a substantial area of land, but it does not

cover anything like the whole of the triangle and
what His Honour here is, in effect, saying, is that

at its closest point to the boundary, setting aside

pipes, it is 40 metres.

BRENNAN J: There is what, one or two pipes which cross the

boundary line?

MR DOWNES:	Yes, yes, there are, His Honour so found.
BRENNAN J:	Two fifty millimetre polythene pipes?
MR DOWNES:	Polythene pipes, yes, Your Honour. The

authorities, and one need not, we would

respectfully submit, go past - I do not think this

arises, but the authorities at Cuthbert v Hardie is

clear, would say that that is not a building, and

in any event if it is a building, it cannot

suddenly turn into the shed which is not linked up

to the irrigation piping anyway.

Now, Your Honours, the judgment in the Court

of Appeal, we would respectfully submit, or the

judgments in the Court of Appeal plainly recognized

the strength of the submissions that are now put

here by the appellant, and further recognized that

it was necessary to adopt some kind of purposive

Amatek(2) 19 9/2/93

approach to solve the problem. Now, if the

submission that we put, that the Act is

sufficiently clear not to justify that step, is

correct, then error is immediately thrown up in the

judgments of the Court of Appeal.

Even if it is legitimate to adopt some kind of

purposive approach the approach adopted, we would

respectfully submit, was illegitimate because what

Their Honours, in effect, did, we would submit, is

to, so to speak, look for a 1992 rationalization of
the problems that arose and seek to so construe the

Act as to provide a broad, fair legislative

provision in the minds of the judges and that,	with
respect, is exactly what the court cannot do.	As
Your Honour Mr Justice McHugh said, at the end	of
the day it is a question of construction.	The

Court does not legislate, and if one is not led by

processes of construction, one does not take the

leap by some process other than that.

Now, in the judgment of Mr Justice Clark with

which Mr Justice Kirby agreed, can I take

Your Honours, first of all, to page 209, and

Their Honours there said, at line 11:

It was submitted that the definition of

ttsubject landtt is consistent only with the

"encroachment" having the more limited

meaning. Even greater emphasis was placed,

however, on s3(2)(b) of the Act for, as

counsel pointed out, little purpose would be served in the transfer of the "subject land" if, as in the present case, that land was

wholly outside the encroaching owner's land

and was not contiguous to the boundary between

the two allotments.

This is, I recognise, a powerful argument

for it could hardly be supposed that the

legislature would empower a court to order the

transfer of a block of land to a person who

could not gain access to it.

His Honour then goes on, and I will not read it to

Your Honours, but again, we would respectfully

submit, recognizing, so to speak, force in the

submissions, but his ultimate conclusion comes at

211, line 10. His Honour simply says this:

Notwithstanding the force of these

submissions I am of opinion that broader
considerations should determine the answer to

the question.

Then His Honour sets out those broader

considerations including a reference, as

Amatek(2) 20 9/2/93

Your Honours will see, to Kingston v Keprose and to

Earl of Lisburne v Davies. We would respectfully

submit, without taking the Court's time to read

what His Honour says on those pages, that they go

past the appropriate role of a purposive

construction and that His Honour erred in effect by

not construing the Act ultimately in the way in

which he was, even by concession at first, drawn to

construe the Act. We would respectfully submit

that Your Honours will depart from that reasoning

of His Honour.

I just draw Your Honours' attention to one

qualification which appears in His Honour's

judgment at page 214, line 20:

The appellant seized on the word

'extends' in the definition of 'subject land'

and constructed an argument that the court was

empowered to grant an interest in the land

between the encroaching owner's land and that

on which the subject buildings stood - in its

submission this was all within the 'subject
lands'. There are problems with this
approach, not the least being the definition

of the land to be transferred, and I am unable

to accept it.

So although Their Honours upheld the appeal, they

rejected an approach which would lead to the

transfer of the whole triangle. Your Honours there

will see on page 215, line 11, what the court

ultimately concluded, this being the majority

judgment - he deals with the negligence argument.
At line 15:

In my opinion the order which should be made in the light of the finding ..... is that the

proceedings should be remitted to the Equity

Division ..... to consider the appellant's

claim.

The relevant parts of Mr Justice Mahoney's judgment

are at page 199, line 22. Again, His Honour refers

to submissions including the submission relating to

the long title and so forth. His Honour says at

19:

His submission suggested that the grant of

rights in respect of free-standing

encroachments did not constitute "the

adjustment of boundaries".

There is force in this submission.

Arnatek(2) 21 9/2/93

But then His Honour goes on to deal with cases

relating to long titles. If I can go back to 197

at line 27 where His Honour says:

I am conscious of the dangers of using policy

and purpose to determine the meaning of the

Act.

The conclusion which His Honour

Mr Justice Mahoney comes to is again a conclusion

which permits some kind of relief in circumstances

in which there is a building wholly on the

adjoining land. Again, we would respectfully

submit that His Honour's reasoning is based on a

purposive approach. His Honour says as much at

page 197, line 27, and we would respectfully submit

the conclusion which he comes to for the same

reasons as we attack the conclusion of the majority is not justified.

His Honour, in fact, says at page 202,

line 13:

But not every free-standing building erected

by the owner of the dominant land will be an

encroachment within the present Act.

And then when he comes to deal with what should

flow, he says at line 21 on page 203:

But issues remain to be determined as to, eg,

whether the buildings erected by the plaintiff

constitute an encroachment.

So His Honour Mr Justice Mahoney is, on any view,

leaving open the whole issue in the present case

for further determination.

BRENNAN J: Well, he is looking for a relationship between

the free-standing building and the contiguous land

of the person who erected it, is he not?

MR DOWNES:  Yes, Your Honour, some concept of erection by

mistake or which was what was urged - - -

MASON CJ: That is the one he identifies.

MR DOWNES:  Yes. But we would respectfully submit that the

Act does not contemplate such an approach to the determination of whether there is an encroachment.

The Act contemplates that kind of activity when one

is dealing with the question of whether in the

exercise of the court's discretion an order should

be made, and if so what order, but not in

determining whether there is an encroachment.

Arnatek(2) 22 9/2/93

BRENNAN J: Is there anything elsewhere in His Honour's

judgment, in which he gives any indication of the

kind of relationship that is said to exist between

a building and contiguous land?

MR DOWNES:  Not that I am aware of, Your Honour, no.

Your Honours, there is legislation in other States in some respects similar and in some respects

different to the present legislation, and can I

just hand to Your Honours a set of the legislation.

MASON CJ:	Why are we going to look at this legislation?
MR DOWNES:	Only because the legislation, in particular in

one respect in one State, is identical to the

legislation before the Court here, but specific

provision is made in addition for circumstances

such as arise here, that is, buildings wholly

erected on other land.

McHUGH J: But Queensland may have misunderstood the effect

of the New South Wales legislation.	What is it?
How does that help us?

MR DOWNES: Yes. Well, Your Honours, I will leave the

legislation where it is and say no more about it.

But we would respectfully submit that - I take

Your Honour's point that that may be so, but it

would be hard to construe an Act which contains

exactly provision as appears in this case, and then
the further provision in such a way as the

"encroachment of buildings" part of the legislation

is wider than we contend it to be here.

Your Honours, it may be said that there is no

logic in a construction of this Act which leads to
the result that a building wholly on adjoining
land, even if only by an inch or a foot, is outside
the purview of the Act, and a building straddling

the boundary is within the purview of the Act.

We would respectfully submit that there is a

deal of logic behind the limitation for which we

contend. There is no doubt that the land has to

be, on any view of the Act, contiguous land.	So,
one asks the question, "If the building can be

wholly on adjoining land, why cannot the building

be, in effect, anywhere at all?" If one has got a

new subdivision of 50 foot frontages, and a

building is mistakenly erected not on the block

next door, but on the block next to that, why is

that outside the purview of the Act? Yet, no

doubt, that is the result and for example at

page 202 at line 12, Mr Justice Mahoney said so.

So, Your Honours, the line has to be drawn somewhere, and we would respectfully submit that

Amatek(2) 23 9/2/93

the appropriate point to draw the line is in the

way we suggest this Act should be construed. The

Act is concerned with the problems which arise when

a building is partly on one person's land and

partly on another. That gives rise to much greater

complexities and problems, and must give rise to,

in practice, than circumstances in which a building

is wholly on adjoining land. And it is the kind of

problems that arise out of that straddling of the
boundary situation which comes out again and again

in the second reading speech. We would

respectfully submit that there is every reason in

logic for that to be the point at which the line is

drawn.

The common law provides its own remedies where

a case in conscience can be made out for a person

who builds wholly on someone else's land to be left

with a remedy against that other person. Broadly
speaking, without turning this into an estoppel

case, the right of the owner who has built on the

wrong block will only arise where the other owner is

bound in conscience. We would respectfully submit

that there is nothing in logic which suggests that

that is a wrong way to approach the proposition.

What the legislation is concerned with is not

the situation where one has the common law remedy

available, or the common law in the broadest sense,

remedy available in the way I mentioned, but

concerned with the kind of problems that arise with

buildings being partly on one person's land and

partly on another.

Your Honours, I am sorry, there is one other

discrete ground of appeal, and it is this. There

was before Mr Justice Cohen a cross claim for

possession. It appears on page 5, or something or

other, in the appeal book. Mr Slattery, who argued

was that if my client were successful in the claim	the case before His Honour, tells me that submissions were put about it and the anticipation	as cross claimant it would be entitled to that
relief.

Yet, perhaps by inadvertence, His Honour does

not at all address the cross claim, even by

reference to it in the judgment. We put on, as

part of our appeal to the Court of Appeal, by way

of cross appeal to the Court of Appeal, a claim for

an order for possession and ancillary relief in

accordance with the claim. Because of the way the

Court of Appeal dealt with the matter the issue did

not arise. We have included it again as ground 7

in our notice of appeal.

Amatek(2) 24 9/2/93

We would respectfully submit - I think this is

really just a matter of housekeeping - that if we

are otherwise successful in this appeal, this Court

ought to grant the relief in the cross claim. I

should also mention that if Your Honours look at

ground 6 in our notice of appeal - - -

MASON CJ:  Or send it back to the Court of Appeal to deal

with it.

MR DOWNES:  I understand what Your Honour says but we would

respectfully submit that the matter is sufficiently

clear that this Court, if it were minded to do so,

might be prepared to make the order. It may be

that we can produce to Your Honours an agreed

order -

MASON CJ: Well, that may emerges as a result of what

Mr Emmett says.

MR DOWNES:  Yes, Your Honour. I did mention, Your Honours,

in opening, that ground 6 of our appeal does not arise because the parties accept that that issue

goes back to the Court of Appeal. .Those are our

submissions.

MASON CJ: Thank you, Mr Downes. Yes, Mr Emmett.

MR EMMETT:  May it please Your Honours. Might I deal

briefly with that last matter, the housekeeping

matter of the cross claim?

MASON CJ: Yes.

MR EMMETT:  It does appear that the trial judge overlooked

it. It seems appropriate to ask though, having

regard to the nature of the relief sought, that the appropriate course would be to remit that matter to the Equity Division to determine, which is, in

effect, what the Court of Appeal did. So that even

if the appeal is held on the principal ground then the appropriate course would be to leave the order of the Court of Appeal intact in so far as it

remits back to the Equity Division the question of

the relief sought in the cross claim, because it

raises such questions as the claim for main profits

and the like, which is clearly - - -

BRENNAN J: The difficulty with that is that the order of

the Court of Appeal was made on the appeal, whereas

the order this would deal with should have been

made on the cross appeal.

MR EMMETT:  I take Your Honour's point. It would need a

different order but the order, in our

submission - - -

Arnatek(2) 9/2/93

BRENNAN J: It is the same effect.

MR EMMETT:  Yes. Thank you, Your Honour. Going back to

the, what now is the sole issue that is before

Your Honours; ground 6 having, as we understand it,

not now being pressed, and that is the construction

of the legislation.	I am not sure that we really
are at odds in terms of the correct approach.	We
would have accepted the - what fell from

Your Honour Mr Justice McHugh in Keprose as being

an appropriate statement of the approach that the

Court should adopt in construing the legislation.

It is our submission, however, that on a

careful reading of the legislation, the result to

which the Court of Appeal came is open on the

legislation. They did not need to apply some

purposive approach in order to arrive at a result

which was different from the clear language of the

legislation. Might I hand up the requisite

outline.

MASON CJ: Yes.

MR EMMETT:	Your Honours, there are probably- two questions of construction in the definitions where the
approach of the Court of Appeal differs from that
contended for by the appellants. The first is in suggesting that the Act does require the consideration of the concept of a building
encroaching as distinct from a person encroaching
by means of a building.

The concept for which the respondents contend

involves looking at the notion of "encroachment" in

a way, perhaps, somewhat similar to what

Mr Justice Mahoney said, you do not have to find

the artificial touchstone of a straddling of a

boundary, what you have to find is a relationship
between a building, on the one hand, and another

parcel of land, such that one can say that somebody

has encroached from the first parcel of land and

that that encroaching extends over the contiguous

parcel of land.

The second area where, in our submission, the

appellant's contentions are erroneous is in the

assumption of what is meant by the "subject land".

The "subject land" is defined in the Act as:

that part of the land over which an

encroachment extends.

The appellant says that that means that the only

land which is "subject land" is the land on which

the building is actually situated or located. Now,

these two concepts are related, in our submission,

Arnatek(2) 26 9/2/93

and they both lead to the same conclusion. But

once you abandon the concept that the "subject

land" is simply the land on which the encroaching

building is erected, and you accept that the

encroachment is the result of somebody stretching
out, extending from one boundary into somebody

else's land, you have the notion of an encroachment

which encompasses, not just the very land on which

the building is located, but that area of the

intervening land which shows that there is some

relationship between the buildings where they have

been put and the encroaching owner's land.

BRENNAN J:	What is the relevance of contiguity?
MR EMMETT:	You have to find contiguity of the two parcels

because this Act is concerned with adjusting
boundaries, there is no question about that. But

we do not contend that, had the respondent

constructed its edifices so far into the boundary

that you could not say that there was a

relationship between the constructions and the

boundary, then there would not be an encroachment.

We do not say that the Act goes so far as to deal

with every case of proprietary estoppal in relation

to contiguous parcels of land. There has to be an

encroachment, that is an extending out from one

parcel into the other.

DAWSON J: Well now, what do you say is the "subject land"

here?

MR EMMETT:	It is a question of fact in any particular case, but it is that area which one can show has been
added on to the legally owned land of the - - -
DAWSON J:	You say it is that triangular portion.

MR EMMETT:  Not necessarily. From a convenient point of

view, that would be one way of putting it, but the

respondent's case would be satisfied by something

less than that. Perhaps I should hand up some

material which, although it was in evidence and is in the application book, was not reproduced in the

appeal book. It was part of exhibit A. This shows

in a little bit more detail the location of the

improvements and in a sense it supplements the

diagram to which my learned friend took

Your Honours at page 32.

Your Honours will see, for example, that the pipes, although we do not suggest that they are

necessarily within the definition of "building",

they do show that the whole of this complex has a

relationship to the land of the respondent. The

pipes pass from the water tank back over the

boundary, indicating that in effect as a matter of

Amatek(2) 27 9/2/93

fact, the respondent has incorporated part of

lot 18 into lot 17.

It would be convenient simply to adjust the

boundary by making the boundary follow the fence

line, but that of course is not necessarily so.

Mr Justice Cohen, in dealing briefly at the end of

his judgment with what he would have done if he had

taken a different view about the law, suggested
that the land to the south of the buildings would

not necessarily be the subject of an order - that

is the. land on this plan which is on the left-hand

side of- the buildings.

Similarly, it may be that land to the north of the buildings themselves, that the tank on the

right-hand side would not necessarily have to be

part of an order. What this does show, though, is

that what has been done has been to incorporate

virtually all of the triangle but perhaps not all

of it, but a substantial part of it, into lot 18.

DAWSON J:  So it is part of your case that encroachment is

encroachment by the owner of the contiguous lot.

MR EMMETT:  Yes, Your Honour.

DAWSON J: Well, how does that marry up with the definition

of "encroachment", which is encroachment by a

building.

MR EMMETT:  Indeed, but a building does not encroach. As a

matter of English, a building does not encroach.

BRENNAN J:  Why not?

MCHUGH J: That is the problem, is it not, that the Act

looks at it objectively? It does not depend on the

intention of the owner.

MR EMMETT:  No, we do not suggest there is any subjective

element involved.	You look objectively at what has
happened.	You look at what is there on the ground,

not why somebody did it, or what he was intending

to do but you look at it and say, "Can one say that

this complex is really part of Lot 18, having

regard to its connection with Lot 18?".	Now that
is a question of fact in any case.

MCHUGH J: If the statute uses the words "encroachment by a

building", and "land over which an encroachment

extends", you have to give meaning to those words,

do you not.

MR EMMETT:  We would not dispute that, but - - -

Amatek(2) 28 9/2/93

McHUGH J: Well, what meaning do you give to the words

"encroachment by a building"?

MR EMMETT:  The encroachment is by means of a building.

Now, an encroachment by just putting a fence, which

is not a building within the definition, is not

sufficient. But if it is an encroachment by

something which falls within the definition of a

building, such as a wall or any building of a

permanent character, then that is sufficient. The

definition of "encroachment" is not directed to a

building doing an encroaching, because as a matter

of English, buildings do not encroach. People

encroach. They might encroach by building a fence,

they might encroach by planting trees or they might

encroach by a building.

DAWSON J:  So it really means encroachment by the contiguous

owner of which the building is evidence.

MR EMMETT: Well, is the means by which the encroachment

occurs, yes.

DAWSON J:  And the evidence of the extent of the

encroachment.

MR EMMETT: Well, yes, you look at it and the encroachment

is that part which has been annexed, in effect, by

the placing of a building there. Now, if the

building was put so far away that one could not see
or discern any connection between where the

building was and the boundary, then this Act would

not apply.

BRENNAN J:  Why do you bring the words "by means of a

building" in, when the Act uses the words, quite

clearly, "encroachment by a building".

MR EMMETT:  What I am suggesting is that, "by", without any

bending of the words, can mean, "by means of".

BRENNAN J: But your proposition that that should be put in

really turns on an assumption that the concept of

an encroachment by a building is an impossibility.

MR EMMETT:  No, not so much an impossibility as not English.

Buildings do not encroach. ·

BRENNAN J:	Why do they not?
MR EMMETT:	Because "encroaching", if one looks at the

definition, is an occupying of something, or a

seizing of something, which one is not entitled to
seize. Buildings do not have any rights. People

have rights.

Amatek(2)	29	9/2/93
DAWSON J:	The sea encroaches on a cliff.	Why cannot a

building encroach?

MR EMMETT:  With respect, we would not agree that is

necessarily an idiomatic use of the language.

DAWSON J: It is in the dictionary.

MR EMMETT:  Yes, but the point is, the two meanings are

there, one does not need to chose one or the other.

So long as both are open - and if there is an

ambiguity one has to choose which - that is when

one might end up with the purposive approach. If

the two meanings are open, then one says, "What is
the object, what is the purpose of this statute?"

"It is to resolve differences about boundaries."

But so long - - -

McHUGH J: Is not the definition of "encroachment" itself

indicative of what the Act is dealing with? It is

dealing with either:

intrusion of any part in or upon the soil -

or:

encroachment by overhang.

It includes:

encroachment by overhang of any part as well

as encroachment by intrusion.

MR EMMETT:  But there is an encroachment by the respondent

here, by intrusion into lot 17. The whole of the

nursery complex intrudes into lot 17, as is

indicated by the plan that I have just - - -

BRENNAN J:  One can accept that very readily that the

respondent has intruded. It may be another matter

as to whether he has intruded from his boundary,

but leaving that aside - - -

MR EMMETT: That is the factual matter.

BRENNAN J: Yes, that is the factual matter. The real

problem is whether the fact that the respondent has

intruded is an encroachment by a building. That is

the point, is it not?

MR EMMETT:  That is the issue, yes. One possible reason for

looking at other legislation is that one can see

the different approach that is taken in other

jurisdictions. Queensland, we do not think helps

very much, because the first part of the Queensland

legislation is virtually identical to the New South

Amatek(2) 30 9/2/93

Wales legislation, and then there was an amendment

to incorporate the proprietary estoppel remedy.

More interesting, perhaps, is the western

Australian legislation which is based on the

current New Zealand legislation. Now, the approach

taken there simply would not allow the argument
that I am advancing. It does show how a

parliamentary draftsman might approach it if he is

making clear that what he is concerned with is that

the straddling, that is, the erection of a building
by the owner by one parcel of land, such that the
building itself straddles the boundary.

Now, one possible further way in which that legislation may be relevant is to look at the

legislative history of the Encroachment of

Buildings Act. Your Honours have before

Your Honours the second reading speech of Mr Ley,

the then Minister of Justice. He adverts to the

fact that this Act had a predecessor in New

Zealand. New Zealand, so far as our researches

have indicated, was the first jurisdiction to adopt

such legislation. He, oddly enough, refers to

Victoria as well, although we have not yet been able to find any equivalent in Victoria.

Your Honour Mr Justice Dawson might know more

about that then we do, but I think I am fair in
saying that our learned friends have been unable to

find any Victorian legislation equivalent to this,

although Mr Ley refers to New Zealand and Victoria

as the model.

What we have been able to get is a not

particularly legible copy of the legislation which

we assume was in force in New Zealand when the New

South Wales Act was passed. Could I hand up copies

to Your Honours. What might be significant is that

in the second reading speech the Minister for

Justice indicates that the New South Wales

parliamentary draftsman has improved on the

New Zealand model. If I could refer Your Honours

to the second reading speech at page 1786 about

two-thirds of the way down the page in the

left-hand column, half-way through Mr Ley's

reported speech:

In New Zealand and in Victoria they have had

similar experience, and the legislatures in

both places have been forced to take action. This bill is founded largely on the measures adopted in those places.

He says "largely" -

Arnatek(2) 31 9/2/93

The bill has been carefully framed by the

royal commissioner on law reform here. It has also been revised by the Law Institute and the

Bar Council. Not only have experts, such as

surveyors, been consulted, but they have made
suggestions in one or two directions.

There were similar comments in the upper house, although at the moment we do not have copies of

what was said in the upper house. But it is to the

same effect, namely, that the New South Wales

parliamentary draftsman has played around with the

New Zealand legislation.

That may be equivocal; it may assist us; it

may hurt us; but our submission is this: that when

one looks at the New Zealand prototype which I have

just handed up, section 97 is the only relevant

section:

Where in any action or other proceeding

in the Supreme Court relating to land it

appears to the Court that the defendant or any

or his predecessors in title has, in the

erection of a building upon any_ land adjoining
the land in question, encroached upon such

last-mentioned land.

It may be equivocal, but what it is concerned

with is encroaching by the person, not by the

inanimate object itself. If that is the prototype,

as it seems to be, then that would, in our
submission, support the contention that we have
advanced, assuming that is open on the language

and, in our submission, it is.

Western Australia has adopted legislation

based on the current New Zealand scheme. It makes

clear, I think in its current form - although it is

Act is probably limited to straddling in one	certainly ambiguous in its original form - that the	division but, on the other hand, Western Australia
at the same time adopted the proprietary estoppel
remedy. So that Western Australia's legislation,
as it was adopted, as New Zealand presently does,
provides relief in substance to the extent that
Queensland does. The language of the Western
Australian statute is somewhat different from that
of Queensland in that Western Australia does not adopt the New South Wales prototype as did South
Australia and Queensland.

Your Honours, really, that is what it comes

down to. As Your Honour Mr Justice Brennan, said,

it is a fairly short point. But the answer is to

be found certainly in the terms of the statute.

Does it simply say, "You can only grant an order in

Amatek(2) 32 9/2/93

relation to land on which a building is actually

constructed". The argument, as we understand it,

proceeds: if that is so, then there is no

mechanism for granting relief where the land on

which the building is constructed is not itself

contiguous with the encroaching owner's land.

McHUGH J:	On the question of purpose, I noticed in Mr Ley's speech he referred to the fact that a bill had been
introduced into the Legislative Council in 1921 and it then got into the hands of a Royal Commissioner
who had thoroughly discussed the matter. I assume
the Royal Commissioner is probably Mr Justice Long property and the Conveyancing Act in the 1920s.
Have you had a look at the - - -
MR EMMETT:	We were not able in the time when we started

looking at this to track that down, I am afraid,

Your Honour. What we did assume, though, is that

the original bill that was referred to

Mr Justice Long Innes was probably in much the same

terms as the New Zealand legislation and then the

Law Reform Commission has expanded it in the way

which resulted in the bill that was then passed and

became law in New South Wales. But it was only, I

am afraid, recently that we were able to get on to

the New Zealand statute and even then, as

Your Honour - - -

McHUGH J: It might have been Sir John Harvey, I think it

was one of those equity judges.

MR EMMETT:  I am unable to say one way or the other. But

Mr Ley does refer to the fact that the Law Reform

Commissioner has had a hand in the drafting of the

legislation.

One thing that perhaps ought to be said is that there is no reason for suggesting, as we think

is implicit in some of the submissions, that the

word "encroachment" should be limited to some small

area in absolute terms. I think some reliance was

placed on what was said in the Supreme Court of

South Australia in Bolton v Clutterbuck.	The
purpose for our attaching the plan to the
outline -

MASON CJ:  We need not trouble you on that argument.

MR EMMETT:  May it please Your Honours. So far as the

authorities are concerned, one thing that can be said is that there is certainly no long-standing authority on the question one way or the other,

that Your Honours should not be persuaded by any

notion of there being long-standing principle which

should not be changed. What we have is Bolton v

Amatek(2) 33 9/2/93

Clutterbuck which certainly does not decide this

question at all. If it is relevant at all, it

simply makes some remarks in passing about what the

Act might or might not extend to.

The decision of Mr Justice Hodgson was given

in an interlocutory judgment in which relief was

sought, and he did in fact grant relief, although

certainly he declined to do it on the basis of the

Encroachment of Buildings Act. Really, the only decision which could in any way be said to deal with the question in explicit terms is that of

Mr Justice Holland. That case itself was an odd

one. It is LDJ Investments v Howard.

As my learned friend indicated, it is

concerned with strata titles and that of itself

suggests that it may not be an appropriate vehicle
for the application of the Encroachment of
Buildings Act. Certainly when the Encroachment of

Buildings Act was passed, it is hardly to be

thought that the draftsman had in mind that it

might have application to the artificial notion of

a fee simple in a stratum under the strata titles

legislation.

MASON CJ: But I do not think the actual decision in the

case is important from our point of view, if the

case is of assistance, it is rather in terms of the

view that Mr Justice Holland expresses about the

Act.

MR EMMETT:  That is what I was coming to. We have to

concede that his is the only judgment in a case in

which it was decisive in which a view is expressed,
and it seems to be a view contrary to the one for

which we contend. But it seems to be based very

much on what was said by the Supreme Court of South
Australia in Bolton v Clutterbuck, that appears

down the page just above the last paragraph:	from page 9616, about three-quarters of the way	The word "building" is defined to include a wall but even then the concept is of one
owner's wall crossing his boundary into
another's land. See Bolton v Clutterbuck.

There is no reasoning. His Honour seems to have assumed that that is what was decided in Bolton

v Clutterbuck and was prepared to follow that

assumption. But when one looks at Bolton

v C~utterbuck it is clear that that reasoning

certainly was not in any way decisive in that

decision at all. That case was one in which,

assuming that the reasoning of the court there were

wrong, it was one in which there was clearly a

straddling of the boundaries, so that really it

Amatek 9/2/93

does not provide any support for the conclusion to

which Mr Justice Holland came.

The other decisions, to which reference is

made in my learned friend's outline, are concerned

with the definition of "building" but do not throw

any light at all on this question. The commentary

in Butterworths Conveyancing Service is expressed

itself to be based on Mr Justice Holland's

decision. If that itself is based on an erroneous

assumption as to Bolton v Clutterbuck, then the

whole edifice falls, and really, in our submission,

or the other. That being so the Court starts, in our submission, with the task of interpreting the

there is not any authority which would lead the

Act from first principles. The long title

indicates that it is concerned with adjusting

boundaries. That, therefore, is the touchstone for
deciding whether or not there is a relevant

relationship between the building, on the one hand, and the encroaching owner's land on the other. May

it please Your Honours.

MASON CJ:  Thank you, Mr Emmett. Do you wish to reply,

Mr Downes?

MR DOWNES: 

Your Honours, we would respectfully submit that

in the way my learned friend has put the case the
matter comes down really to the meaning of the
words "encroachment by a building" as part of the

definition, and we would respectfully submit that the submission for which he contends, namely that

the words "encroachment by a building" in effect

mean "encroachment by a person by erecting a

building", is just simply not open on the

legislation.

Once one then substitutes the word

"encroachment" in the other definition such as

"subject land" in accordance with its defined

situation, one sees that, with respect, Mr Emmett's

submissions are untenable. For example, taking his

written submissions, the reference in the

definition of "subject land" to over an

encroachment cannot mean anything else but the land

underneath it. To the extent to which the word

"over" - my learned friend refers to this in

paragraph 6 of the submissions - to the extent to

which he seeks to take some comfort from the word

"over", we would respectfully submit, that simply,

with respect, supports the proposition - that is,

the use of the word "over" rather than the word

"on" simply underscores the idea that what one is

having is some kind of movement from, in this case,

one parcel of land on to another parcel of land.

Arnatek(2) 35 9/2/93

My learned friend recognized, I think, more

than once, that what he was dealing with was an Act

which adjusts boundaries and that is what the

application was and on that basis he is putting a

case which rejects the idea that he can get a

landlocked piece of land transferred to him with

easements associated with it. But I would remind

Your Honours that in the Court of Appeal

Mr Justice Mahoney, by reference to section 3(2)(b)

is, so to speak, the saving basis upon which relief

could be granted and Mr Justice Clark, at 214, line

20, both rejected this idea that you could have, in

effect, the whole triangle. We would respectfully submit properly so, and particularly when what one

is really dealing with is an application for a

court-assisted expropriation of land and the court

would be careful before it found that a statute

gave such a right.

On the facts of this case my learned friend

really, we would respectfully submit, will fail

even on his own submission, when he says, "Well,

what you have to have is encroachment by a building

but just putting up a fence is not.enough.",
because really properly understood this case is

more a case of putting up a fence and having a few

things inside it than a case of putting up a

building with a fence incidental to that.

In point 3 of his written submissions my

learned friend does address this idea of mistake as

being the connecting factor and we would

respectfully submit that the point is that the

legislature does permit reference to other
circumstances when it comes to the question of
discretion, that is 3(3). But the other parts of

the Act relevant to jurisdiction do not permit the

approach that my learned friend contends for.

Those are out submissions in reply.

MASON CJ: Thank you, Mr Downes. Court will consider its

decision in this matter and will adjourn until

10.15 am tomorrow.

AT 12.12 PM THE MATTER WAS ADJOURNED SINE DIE

Amatek(2) 36 9/2/93