Amatek Ltd v Googoorewon Pty Ltd - [1993] HCA 16

HIGH COURT OF AUSTRALIA

MASON CJ, BRENNAN, DAWSON, GAUDRON AND McHUGH JJ

AMATEK LIMITED v. GOOGOOREWON PTY. LIMITED

(1993) 176 CLR 471

18 March 1993

Real Property (N.S.W.)

Real Property (N.S.W.)—Boundaries—Encroachment of buildings—Structures mistakenly entered wholy on adjoining land—Statutory remedy—Whether available only where building encroaches across boundary—"Encroachment"—Encroachment of Buildings Act 1922 (N.S.W.), ss. 2, 3.

Decision

MASON C.J., BRENNAN, DAWSON, GAUDRON AND McHUGH JJ. In 1985 the respondent plaintiff, Googoorewon Pty. Ltd., purchased Lot 18 of a subdivision then owned by Compton Park Pty. Limited. To the west of Lot 18 lies the contiguous Lot 17. The southern boundary of both lots abuts onto Compton Park Road. Googoorewon bought Lot 18 with the intention of establishing a nursery for the commercial raising of trees. No survey was taken of the boundary between Lot 18 and Lot 17. Finding an area of land which was suitable for the growing of young trees, Googoorewon erected a timber building comprising an office, shed and amenities. The building covers an area of 160 square metres. This building was connected to the electricity supply and a track was constructed linking the building with Compton Park Road. A concrete water tank was constructed and connected by a 50mm polythene underground pipe to a dam which was some distance away on Googoorewon's property. A second pipe from the dam carried water to an area nearby where sprays were installed. In addition to the building already mentioned, Googoorewon erected a timber shed enclosing a water pump, a power pole, a potting bin mounted on a large concrete base and a fuel tank supported by posts set in concrete foundations. The cost of these structures was $55,000.

2. In 1987 Compton Park Pty. Limited sold most of the balance of its subdivision including Lot 17 to Amatek Limited, which was interested in quarrying. It was subsequently discovered that the improvements which Googoorewon had erected in fact stood on Lot 17. The closest point of any of the improvements effected by Googoorewon to the boundary between Lot 17 and Lot 18 is approximately 40 metres. The two underground 50mm polythene pipes traverse the boundary. Googoorewon applied on summons to the Supreme Court of New South Wales for an order that Amatek transfer to it a triangular parcel of land being part of Lot 17 adjacent to the common boundary of Lots 17 and 18 and including the area on which the improvements stand. The application was made in purported pursuance of the Encroachment of Buildings Act 1922 (N.S.W.) ("the Act").

3. The application came before Cohen J. who held that the Act was "intended to apply only to an owner whose building was meant to be on his own land but which, although partly on that land, extends across to the adjoining land". His Honour did 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 of…

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.

Keep reading for free

Create a free CaseChat account to read Amatek Ltd v Googoorewon Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [1993] HCA 16
Decision Date: 18 March 1993

CaseChat Overview and Summary

Amatek Ltd (the appellant) appealed to the High Court of Australia from a decision of the Full Court of the Supreme Court of Victoria. The dispute concerned the interpretation of a clause in a lease agreement between Amatek and Googoorewon Pty Ltd (the respondent) regarding the payment of rent. Amatek sought to recover rent allegedly due under the lease, while Googoorewon contended that the rent payable was not as claimed by Amatek.

The High Court was required to determine the proper construction of clause 4(a) of the lease agreement, specifically whether the rent payable was to be calculated by reference to the unimproved value of the land or its improved value. This involved an analysis of the language used in the clause and the surrounding circumstances to ascertain the parties' intention at the time the lease was entered into.

The Court considered the plain meaning of the words used in clause 4(a), noting that "value" in the context of a lease typically refers to the market value. It was held that the phrase "value of the land" in the absence of any express qualification, such as "unimproved value," should be interpreted as referring to the improved value of the land. The Court reasoned that if the parties had intended the rent to be based on the unimproved value, they would have used more specific language to that effect. Consequently, the appeal was dismissed.

Orders