Amealco Holdings Pty Ltd v Li

[2020] NSWLEC 1504

Land and Environment Court

New South Wales

Medium Neutral Citation:

Amealco Holdings Pty Ltd v Li [2020] NSWLEC 1504

Hearing dates:

Conciliation conference on 4 August 2020

Date of orders:

23 October 2020

Decision date:

23 October 2020

Jurisdiction:

Class 3

Before:

Peatman AC

Decision:

The Court orders:

(1) The appeal is dismissed.

Notation: The Court notes that the parties have agreed that each party will pay its own costs.

Catchwords:

ENCROACHMENT – conciliation conference – agreement between the parties – orders

Legislation Cited:

Encroachment of Buildings Act 1922

Land and Environment Court Act 1979

Category:

Principal judgment

Parties:

Amealco Holdings Pty Ltd (Applicant)
Zhiyu Li (Respondent)

Representation:

Counsel:
G Babe (Applicant)
R Gee (Respondent)

Solicitors:
Egis Legal (Applicant)
Burrell Solicitors ILP (Respondent)

File Number(s):

2020/137882

Publication restriction:

No

Judgment

1. COMMISSIONER: These proceedings arise as a result of an encroachment of land by one neighbour building a retaining wall on another neighbour’s land.

1. Amealco Holdings Pty Ltd (Amealco) is the registered proprietor of the land contained in Folio Identifier 3/774684 located at 40 Melville Street, Ryde, NSW 2112 (Amealco Land).

2. Zhuyi Li (Mr Li) is the registered proprietor of the land contained in Folio Identifier 5/774684 located at 44 Melville Street, Ryde NSW 2112 (Li Land)

3. The Amealco Land and the Li Land share a common boundary for approximately 13 metres.

4. On or about 1988 the owner of the Li Land built a retaining wall structure along the common boundary, and that retaining wall structure encroached the Amealco Land for approximately 7 metres (Encroachment).

5. On 8 May 2020 Amealco filed an application in the Land and Environment Court of New South Wales seeking various orders pursuant to s 3 of the Encroachment of Buildings Act1922 including, inter alia, an order for the encroaching structure to be removed, or compensation to be paid by Mr Li to Amealco if the structure was to remain in place.

6. The Court has jurisdiction to hear the matter pursuant to s 19(c1) of the Land and Environment Court Act 1979 (LEC Act), and the proceedings fall within Class 3 of the Court’s jurisdiction.

7. The Court has power to hear and dispose of the proceedings under the ss 3(2) and (3) of the Encroachment of Buildings Act 1922.

2. The Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which was held on 4 August 2020. I presided over the conciliation conference.

3. After the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the parties entering into a Deed of Settlement and Release dated 12 October 2020 (Deed) which provides, in summary, as follows:

1. Amealco will pay to Mr Li the sum of $9,670.

2. Mr Li will, at his cost, engage a suitably qualified and experienced contractor to remove the Encroachment and construct a new retaining wall on or within the boundary of the Li Land, of a design that has been agreed between the parties, a copy of which design is annexed to the Deed.

3. Amealco will grant to Mr Li access to the Amealco Land for the purposes of completing the demolition and construction works on particular terms as set out in the Deed.

4. The Court dismissing the proceedings.

5. Each party agreeing to pay its own costs.

4. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions.

5. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be:

1. Sections 3(2) and (3) of the Encroachment of Buildings Act1922.

2. The parties’ decision involves the Court exercising the function under s 19(c1) of the LEC Act to hear and dispose of the matter.

3. Identification of the Encroachment by Mr Li upon the Amealco Land.

4. The agreement between the parties for Mr Li to remove the Encroachment and rebuild the retaining wall on the Li Land, and for Amealco to pay the sum of $9,670.

5. The parties explained how the jurisdictional prerequisites have been satisfied by producing an executed copy of the Deed.

6. The parties consider that the jurisdictional prerequisites to the proper exercise of the power to approve the removal of the Encroachment, the rebuilding of the retaining wall on the Li Land, the monetary contribution by Amealco to Mr Li, and the agreement that each party will pay its own costs. For the reasons outlined above I accept that to be the fact on the evidence before me.

7. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act.

8. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3)(b) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

9. The Court orders:

1. The proceedings are dismissed.

Notation: The Court notes that the parties have agreed that each party will pay its own costs.

…………………………

M Peatman

Acting Commissioner of the Court

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Decision last updated: 23 October 2020