Amatek Limited v Googoorewon Pty Ltd - [1992] HCATrans 210

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S2 of 1992
B e t w e e n -
AMATEK LIMITED

Applicant

and
GOOGOOREWON PTY LTD

Respondent

Application for special leave
to appeal

MASON CJ
BRENNAN J

MCHUGH J

Amatek

3/8/92

-

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 3 AUGUST 1992. AT 11.11 AM

MR G.K. DOWNES, QC:

If the Court pleases, in this matter I

appear with my learned friend, MR M.J. SLATTERY,

for the applicant. (instructed by Sly and Weigall)

MR A.R. EMMETT, QC: If 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 Honour, this application raises a

fundamental question relating to the application of
the Encroachment of Buildings Act legislation of
New South Wales which has parallels in other
States. The issues arise in the following way: the plaintiff bought rural land near Berrima on which.it built a plant nursery. That means that
there was constructed on land a number of buildings
and structures in connection with the plant

nursery. Some of them were buildings of a more
substantial nature, a kind of office building, I
think, but other structures that were erected on
the land included things associated with

irrigation, pipes and the like. The land was also - · ·· ·
used for the storage -

MASON CJ: Are we interested in all the detail of this? Is

this not a question of jurisdiction in regard to
what you want to argue?

MR DOWNES: Yes, but it does - the detail, perhaps, is not

so important, Your Honour, but a brief
understanding of it is significant to the point of
the meaning of some of the words in section 3 of
the Act. Your Honours, perhaps a convenient
course, with Your Honours' leave, is to hand up, if
I may, four copies of the Act. Your Honours will
~ave appreciated, if I could just conclude, that
all of the buildings that I have been referring to,
in fact, were not on the land that was acquired by

were all and every one of them on the land. the plaintiff at all but were on the defendant's land. They were not straddling the boundary, they

MASON CJ:

We have picked that up from reading the

judgments, actually.

MR DOWNES: Yes, Your Honour. Between 40 and 134 metres on

the land. Can I take Your Honours then to the
scheme of the legislation and, in particular, can I
go first of all, Your Hqnours, to section 3 which
is the section which authorizes the grant of
relief. It provides that:
Either an adjacent owner or an encroaching
owner may apply to the court for relief -

Amatek

3/8/92

Then, in subsection ((2) -
On the application the court may make such orders as it may deem just with respect to -
(a) 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.

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Details

Case: [1992] HCATrans 210
Decision Date

CaseChat Overview and Summary

The applicant, Amatek Limited, sought special leave to appeal to the High Court of Australia from a decision concerning the application of the *Encroachment of Buildings Act 1972* (NSW). The dispute involved buildings and structures erected by the plaintiff on land owned by the defendant, Googoorewon Pty Ltd, near Berrima. These structures, including a plant nursery, office building, and irrigation pipes, were located entirely on the defendant's land, not straddling the boundary.

The central legal issue before the High Court was the interpretation of "subject land" as defined in section 2 and used in section 3 of the *Encroachment of Buildings Act 1972* (NSW). Specifically, the court had to determine whether the Act permitted an order for the transfer of a substantial parcel of land, which was not directly underneath an encroaching building, or if "subject land" was confined to the land directly beneath the encroaching structure.

The applicant argued that the definition of "encroachment" in section 2, which includes "encroachment by a building" and "encroachment by intrusion of any part in or upon the soil," when read with the definition of "subject land" as "that part of the land over which an encroachment extends," limited the scope of relief under section 3(2)(b) to land directly beneath the encroaching building. The court was therefore required to consider whether the Act allowed for the transfer of a larger area of land than that directly occupied by the encroaching building.

The application for special leave to appeal was granted.

Orders