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 1 3/8/92

-

TRANSCRIPT OF PROCEEDINGS

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

Copyright in the High Court of Australia

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 2 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 payment of compensation to the

adjacent owner;

(b) the conveyance transfer or lease of the

subject land to the encroaching owner, or the
grant to him of any estate or interest therein
or any easement right or privilege in relation

thereto -

Your Honours, the phrase "subject land" is a

significant phrase for present purposes and one

finds "subject land" defined in section 2 and it is

defined to mean:

that part of the land over which an

encroachment extends.

If one then goes back into the meaning of

"encroachment" -

"Encroachment" means encroachment by a

building, and includes encroachment by

overhang of any part as well as encroachment

by intrusion of any part in or upon the soil.

So, by that process, it is plain that the subject

land to which the section is referring in

section 3(2)(b) is limited to land underneath a

building and, more particularly, land underneath an

encroaching building.

Your Honours, to answer Your Honour

the Chief Justice's question as to the relevance of

the matters I was referring to, it is just this,
that the application here was not an application to

transfer isolated or separated parcels of land

under buildings at all but an application to

transfer a large triangle of land which

Your Honours can see in the diagram at page 74 of

the appeal book.

If Your Honours looks at more or less the very

centre of the triangle where there is a note with

an arrow saying - I think it is:

Hardstand area with overhead sprinklers -

that a substantial part of what was sought to be

transferred in this application was that which one

would expect if one were seeking to establish a

nursery, namely ground that has not been improved

Amatek 3/8/92

other than by having pots with trees and other

plants in them standing on it.

One of the issues then, Your Honours, of

significance which we say, ultimately, ought to

justify this Court to grant special leave is the
issue of how a construction of this Act, which
permits an application to be made in circumstances

in which one is not dealing simply with a building

which extends from the land of the plaintiff on to

the land of the defendant but which extends to an

area of some acres with some buildings, some other

structures, pipes, plants and things of that kind

erected on it.

It is our respectful submission that

section 3(2)(b) could not be given in those

circumstances a construction beyond that which it

in terms deals with, namely the transfer of land

underneath a building. So, our first submission,

Your Honours, as to the proper construction of the

Act is that the Act relates only to - and we would

respectfully submit there is nothing which warrants

any extension past this - land underneath a

building.

The second submission is that the Act relates

only to buildings erected partly on the plaintiff's

land which extend over to the defendant's land.

There are a number of matters that I can take

Your Honours briefly to relating to that.
Your Honours will have appreciated that I have to

confess by accident the copy of the Act I have

handed up to Your Honours does have some

underlining in it but the underlining,

Your Honours, is of course my underlining and is

the material which we place particular emphasis on.

If I can just briefly go through it,

Your Honours: the short title of the Act is the

"Encroachment of Buildings Act".	The long title of
the Act is:
An Act to make provision for the adjustment of
boundaries where buildings encroach on
adjoining land -

and, of course, the submission there is that to

transfer a large parcel of land is not to adjust

boundaries where buildings encroach and even

His Honour Mr Justice Mahoney in the court below

recognized by using - I think he said, "That was an

argument of considerable force", or words to that

effect.

MASON CJ: But there are contrary indications, are there

not, Mr Downes. It is not all one way. For

Amatek 4 3/8/92

example, if you look at the definition of

"encroaching owner" in section 2, it does suggest

that encroachment consists of a building being

situated beyond the boundary of the owner of the

contiguous land. Although you place reliance on

subsection (2)(b), that provision concludes with

the words:

or any easement right or privilege in relation

thereto -

and, as we know, the words "in relation thereto"

are of wide comprehension.

MR DOWNES:  We would respectfully submit the "thereto"

though, Your Honour, is confined to the building,
the structure itself, and to give somebody an

easement for pot plants in an open field near a

building which happens itself to be some 50 metres

on land owned by another would not be within that.

But, Your Honour, we would respectfully submit

that there really is not, we would go so far as to

say, Your Honour, anything by way of contrary

indication in the Act and we would take up the very

definition that Your Honour the Chief Justice just

took me to in support of the proposition because,

Your Honour, there are three elements there which

we would respectfully submit are important: the

first is "boundary"; the second is "beyond"; and

the third is "extend".

Where one has the concept of a boundary with

something extending beyond that boundary, one, with

respect, has what has always until now been

understood, we would respectfully submit, to be the
proper understanding of this legislation, that it
was intended to deal with buildings which crossed

over the border between two parcels of land and

that, Your Honour, we would respectfully submit, is

exactly what that definition does.

Your Honour, the fact that:

"Encroachment" means encroachment by a

building -

but then there is an overhang reference added to it

by the legislature shows, we would respectfully

submit, that the legislature was not here

contemplating any concept of curtilage or anything

of that kind. On the contrary, everything in the

Act points to the fact that what one is dealing

with is a building which must, by definition, be a

"substantial building of a permanent character" -

Amatek 5 3/8/92

that is the definition of building - which extends

across a boundary.

Your Honours, the matters that we refer to in

the definition in support of that proposition are the ones that I have just drawn attention to. In subsection (3)(c), there is another reference to

"encroaching building", again underlining the

nature of the matter to which the legislature was
directing attention, namely buildings. In

section 5(2), there is a reference to:

the parcel of lana contiguous to the boundary

beyond which the encroachment extends -

Your Honours, some of the judges below, as
Your Honours may have seen, referred to a case

called the Earl of Lisburne's case in the context

of an argument which said that one can have the

concept of encroachment without having the concept

of extension from one parcel to another. But we

would respectfully submit that that case was

dealing with a very different situation.

The proposition for which that case is good is

a proposition which says, "Where a tenant occupies

or uses land the title to the land inures not to	the tenant but to the landlord. 11 But when one is
talking about encroachment in terms of use of the
land, we would respectfully submit it is not
difficult to find that the boundary of the encroachment might be substantially on other land
and away from the land of the landlord.
But, Your Honours, here, one is dealing with - and the statute reminds one many times -
encroachments of building and the land under
building. And we would respectfully submit that
one cannot say that because use of land can give
rise to one kind of encroachment, construction of a
building can give rise to an encroachment wider
than the area of the building itself. And the
legislation, as I have sought to point to
Your Honours, particularly in section 3(2)(b) and
the other definitions, shows that the
subject-matter which the legislature is addressing
is solely the land underneath buildings.

We would respectfully accept, of course,

because of the part of the subsection to which

Your Honour the Chief Justice referred to me, there

is, of course, a limited right to grant easements

or other rights, easements for support, things of

that sort, we would respectfully submit, but not to

give that which the legislation specifically sets

itself against giving, namely a right somewhat akin

Amatek 6 3/8/92

to, if not identical to, the fee in land on which

no building has been erected by the plaintiff.

Your Honours, can I just conclude the

reference to the Act by taking Your Honours to

section 9 which is the part of the Act which is, so
to speak, anticipated in the long title when it

talks about facilitating the determination of

boundaries.

MASON CJ:  Mr Downes, can I interrupt you to ask you what is

the effect of the decisions on this statute and,

for that matter, its counterpart in other States?

MR DOWNES:  Your Honour, the decision in the Court of Appeal

Act could only apply - rejected the holding of Mr Justice Cullen that the

MASON CJ: Yes, we are aware of that, but what about the

decisions interstate?

MR DOWNES:  Your Honour, there is a decision of a South

Bolton v Clutterbuck.

Australian single judge in papers.

MASON CJ: Is the South Australian statute substantially indistinguishable from the statute in New South

Wales?

MR DOWNES:  Yes, Your Honour. The Queensland statute is

also substantially indistinguishable but I have to

add this, Your Honour: it does have - and perhaps

this is an argument in support of our

construction - a further part in the statute which

deals expressly with mistaken construction of

buildings wholly on other land. So that, as I

would understand it in Queensland, the problem that

·arises here would not arise. However, expressio unius, perhaps, one could say in Queensland the words which are identical to the words of our Act	must lead to the result that the Act only applies	to land under buildings extending across a boundary
or that part of it which is the same as the
Encroachment of Buildings Act.

MASON CJ: And Clutterbuck favours the straddle

construction?

DEANE J:  Yes. We would go so far as to say the ratio of

Clutterbuck depends upon the straddle theory.

Mr Justice Clarke, in the judgment in the Court of

Appeal, says that it could be understood another

way but the best way is to understand it as

depending upon the straddle theory.

Amatek 3/8/92

So far as Western Australia is concerned,

Your Honour, the Western Australian legislation, I do have to tell Your Honours, is not in terms that you could say were identical or nearly identical.

So I do not think I could say to Your Honours that

the decision of the New South Wales Court of Appeal

would create the same problem, for example, in

Western Australia that it might create in South

Australia.

I have not been able to find the Northern

Territory legislation but one would anticipate that

the Northern Territory legislation would follow the

South Australia legislation and be identical to the

South Australia legislation.

Your Honours, in Bolton v Clutterbuck, the

actual words of the judge are set out at page 15 of the appeal papers and his words are, at line 15:

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.

MASON CJ:  Mr Downes, we will hear what Mr Emmett has to say

at this stage.

MR DOWNES: If Your Honour pleases.

MASON CJ: Yes, Mr Emmett.

MR EMMETT:  May it please Your Honours. One thing that has

to be borne in mind in relation to this application

is that the only question which Your Honours could 'decide is the straddle or the no straddle question.

MASON CJ: Yes.
MR EMMETT:	The other matters to which my learned friend

referred have not yet been raised because there has

been no decision as to what order should be made in

the circumstances. Your Honour, our position is

this, shortly, that the Court of Appeal of New

South Wales has now give a clear and unambiguous

view about straddle or no straddle. So that the

law so far as New South Wales is concerned is

clear. My learned friend accepts that so far as

Queensland is concerned, the matter does not arise.

So far as Western Australia is concerned, the

legislation differs. That leaves only South

Australia where a decision of a single judge may or
may not be inconsistent with the judgment of the

Court of Appeal.

Amatek 3/8/92

Mr Justice Clarke deals with Bolton v

Clutterbuck at page 54 of the application book, at

line 5:

In that case the owner of land upon which two adjoining two storey buildings were erected sub-divided the land in such a manner that one

lot had the whole of the northern building and
a portion of the southern building, six feet

wide, on it. That lot was then sold to a

purchaser and some years later the other lot

was also sold. All parties were aware, at all

relevant times, that portion of the southern
building overlapped on to C's land. The

purchaser of the southern lot brought an

application for relief under the Encroachments

Act 1944 (SA). Ross J rejected the

application holding that no encroachment had

been established. Although the judge appears

to have placed some emphasis on the lack of

evidence of any error, mistake or negligence,

the better view would seem to be that

His Honour regarded the element of intrusion

as essential to encroachment

In other words, it is a matter of construing what

Mr Justice Ross was saying to see whether he did,

in fact, take a different view and it may well be

that minds would clearly differ as to whether he

was saying anything different.

BRENNAN J: But that has been the view that conveyancers

have taken until this case, is it not?

MR EMMETT:  I beg Your Honour's pardon?

BRENNAN J: ·That is the view that conveyancers have taken

until this case?

MR EMMETT:	As to whether a - - -
BRENNAN J: An encroachment is necessary.

MR EMMETT: That begs the question, with respect, whether a

straddling is necessary.

BRENNAN J: Straddle, yes.

MR EMMETT: There is no evidence of that, Your Honour.

Certainly, some comments have been made. I think

that the application papers refer to the comment

made in Mr Justice Young's Commentary on

Conveyancing. But I think it is fair tq say that

no firm view is expressed anywhere, one way or the

other, and whether it is fair to say that

conveyancers have always taken the view that

Amatek 9 3/8/92

straddling is necessary, I think, is just not open

at the moment.

McHUGH J:  Mr Justice Holland seemed to assume it in

Howard's case.

MR EMMETT:  That was a different case altogether though,

Your Honour.

McHUGH J:  I know it was but he still seems to have assumed

it only be applied in the case of the straddle.

MR EMMETT:  It is certainly by no means clear that that is

the only interpretation open on the words of the
legislation. Some point was made in the affidavit

in support of this application that the Court of

Appeal had to adopt a •.... approach in order to come

to the conclusion which it did. It certainly

relied on the purpose as supporting the conclusion

but that was by no means conclusive.

McHUGH J:  If you looked at what Mr Ley had said, he seemed

to have had in mind t.he straddle approach. He

talked about "an inch or two", "people being held

to ransom for an inch or two building" - - -

MR EMMETT:  An inch or two in a city building but there is

nothing in this legislation, of course, that limits

the operation of the statute to city buildings

where an inch or two would be significant. Just by

way of illustration, can I hand up to Your Honours

plans taken from the appeal books below just to

indicate what we are concerned with.

Your Honours, lot 18 is the parcel owned by

the plaintiff, the present respondent. The balance

of the yellow marking is the parcel which was
acquired by the present applicant, the defendant
below. Although there are several lots involved,

one can see that the relative size of the area

concerned is insignificant in the overall scheme of

the facts involved in this case and while one

might, as Your Honour Justice McHugh said, have

regard to being blackmailed for a couple of inches,

in a city block a couple of inches is very

significant. In a country block, where one is
talking of hundreds of hectares, a couple of

hectares is insignificant in several thousand.

I hand that to Your Honours only by way of

illustration of the point that it is not

appropriate to limit the operation of this Act

simply to the observation made by the then

minister, bearing in mind that the legislation was

not limited to city buildings. But the short

proposition, Your Honours, is this, that no

decision has yet been made, the decision in the

Amatek 10 3/8/92

Court of Appeal is clear and unambiguous and the only judgment that really is outstanding itself is

ambiguous as to whether or not it took a different

view.

So far as Your Honour Justice Brennan's

question is concerned, it is our submission there

is no indication one way or the other that

conveyancers have conclusively adopted the straddle

approach rather than the alternative approach and

both are clearly open on the statute. When you

look at the long title it is concerned basically

with boundaries, not with whether things go over

boundaries.

There are three subjects referred to in the

where buildings encroach; one is the facilitation long title: one is the adjustment of boundaries,

of the determination of boundaries; and the third

is simply incidental for purposes connected

therewith.

BRENNAN J: Your case, as I understand it, is that you are

entitled to the whole of the triangle?

MR EMMETT: That is one contention. At its highest we would

say that the Act would authorize a transfer of

ownership of the triangle or, at least, an easement

in respect of the triangle. Mr Justice Clarke said

that is not necessarily appropriate but held that

whatever order ought to be made there was

jurisdiction to make some order notwithstanding
that the buildings in question were not straddling

the boundary.

BRENNAN J: But, on your construction, islands of land can

be the subject of an order?

MR EMMETT:  No, not an island.

BRENNAN J: Not islands of land?

MR EMMETT:  The Act certainly refers to contiguity as being

a touchstone for the making of an order. What we

would say is that when you look at the facts of

this case, and the diagram, perhaps, illustrates

this, the encroachment is the whole of the

triangle. The whole of the triangle has been, in

effect, incorporated into the dominant land to form

part of the land by way of encroaching to the

farther end of the triangle.

BRENNAN J: The case then does raise both questions of

straddling and the under the building argument?

MR EMMETT:	It does not at the moment because no order has been made.	The matter was referred back to the
Amatek	11	3/8/92

equity division to determine what order was

appropriate. It may be, when the equity division

came to deal with it, it would decide, contrary to

our contention that there should simply be an
easement in respect of the building and perhaps

access to the building in the meantime or it may

make an order consistent with what was contended

for by the plaintiff. But that is one of the

difficulties with the court determining this case

because it is really only part heard at the moment.

His Honour Mr Justice Cohen did not make a

determination on that question. He concluded that

he did not have jurisdiction and although he then

went on to decide some other questions which would

arise, if he was wrong on that question, he did not

make a determination as to what order he would make

if he was wrong in relation to jurisdiction. So

that if leave were granted and the appeal were

dismissed the whole matter would still have to go

back to the equity division in order to determine

what order should be made and we might then be

faced with the consequence of coming all the way	... ~
back up again to see whether or not that order was
correct.

MASON CJ: But that is unlikely, is it not? I mean, the

point that is most likely to attract the interest

of this Court is the question of jurisdiction.

MR EMMETT:  That may be and that is certainly a submission

we might make at another time. But my learned

friend was adverting to that other point that

Your Honour Justice Brennan just put to me.	Our
proposition is that point really would not be
raised in these proceedings.	If it were to be

raised it would have to be raised at a later time.

BRENNAN J:  It might arise in the course of considering the straddling argument, of course.

MR EMMETT: 

Some comment may be made about it but until such

time as the court decides below what order ought to
be made, it may be difficult for Your Honours to

determine the matter. One possibility, of course, is that if leave were granted a cross appeal would

be filed seeking what was, in fact, sought in the
Court of Appeal, namely that the Court of Appeal

itself should have made an order and that is one possibility that one would have to bear in mind, that if Your Honours granted leave - and I am not

saying this in terrorem - - -

MASON CJ: 

I do not think it would take us long to dispose of that cross appeal, Mr Emmett.

Amatek 12 3/8/92

MR EMMETT:  With respect, it would have to be disposed of,

Your Honour, if the point that Justice Brennan is

raising were considered. If the appeal were
dismissed, then the whole matter has to go back

down. If it were upheld, then, of course, I accept

that would be the end of the matter. I do not wish

to say anything more, Your Honours.

MASON CJ: There will be a grant of special leave to appeal

in this matter.

AT 11.43 AM THE MATTER WAS ADJOURNED SINE DIE

Amatek 13 3/8/92