Burgess v Benakis - [2024] NSWSC 1436

Supreme Court

New South Wales

Medium Neutral Citation: Burgess v Benakis [2024] NSWSC 1436
Hearing dates: 11-13 November 2024
Date of orders: 13 November 2024
Decision date: 13 November 2024
Jurisdiction: Equity - Real Property List
Before: Peden J
Decision:
At [79]

Catchwords:
LAND LAW — Encroachment of Buildings Act 1922 (NSW) — Whether defendant should be ordered to remove encroaching metal beams and concrete footings which support garage wall in circumstances where encroachments inhibit plaintiff from developing his land
TORTS — Nuisance — Private nuisance — Whether stormwater ingress from neighbouring property a nuisance — Whether cross-defendant has continued or adopted the nuisance

Legislation Cited:
Encroachment of Buildings Act 1922 (NSW) ss 3, 10
Evidence Act 1995 (NSW) s 53

Cases Cited:
Boed Pty Ltd v Seymour (1989) 15 NSWLR 715
Boyes v Thomson [2024] NSWSC 1325
Gales Holdings Pty Ltd v Tweed Shire Council (2013) 85 NSWLR 514
Llavero v Shearer [2014] NSWSC 1336
The Uniting Church in Australia Property Trust (NSW) v Crowe [2024] NSWSC 1387

Category: Principal judgment
Parties: Mark Paul Burgess (Plaintiff)
Sophia Benakis (Defendant)
Representation:
Counsel:
J Adamopoulos and S T Hanscomb (Plaintiff)
T Lynch SC and A Strik (Defendant)
Solicitors:
Kydon Segal Lawyers (Plaintiff)
Jack Rigg Solicitors (Defendant)

File Number(s): 2022/00163175
Publication restriction: Nil

EX TEMPORE Judgment (REVISED)

Mr Mark Burgess lives in Kingsford, New South Wales (number 459). He has sued his neighbour at number 461, Ms Sophia Benakis, because he wants her to remove encroachments on his land that support her garage wall located near the boundary.
Ms Benakis’ garage was built in about 1937. In about 2006, the garage wall near the boundary was leaning, and Ms Benakis’ mother, then owner of 461, installed two metal beams with concrete footings to support the garage wall. In June 2023, the Registrar General determined the common boundary between the parties’ properties, and since then, it has not been in dispute that identified parts of the metal beams and concrete footings encroach onto Mr Burgess’ land.
Ms Benakis defends the matter, and by way of amended cross-claim, seeks an order granting her an easement for support from Mr Burgess for the life of the garage. She further asserts that Mr Burgess continues to cause a nuisance because of uncontrolled stormwater discharging from his land to Ms Benakis’ and weakening her garage’s footings under the wall. She seeks an order that he install adequate stormwater drainage.
Mr Burgess denies he has committed or adopted any water nuisance and raises the inutility of a mandatory injunction in circumstances where he intends to develop his property further, including to install stormwater systems.
While the parties identified 25 issues for determination, there were really fewer, particularly after Mr Burgess no longer pressed his trespass claim. The issues that remain are:

Whether Ms Benakis’ beams and footings ought to be removed by an order under s 3(2)(c) Encroachment of Buildings Act 1922 (NSW) (the Act).

Whether alternatively, Ms Benakis ought be granted an easement of support for her…

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.

Continue reading Burgess v Benakis

Details

AGLC: Burgess v Benakis [2024] NSWSC 1436
Case: [2024] NSWSC 1436
Decision Date: 13 November 2024

CaseChat Overview and Summary

The plaintiff sought an order for the defendant to remove metal beams and concrete footings which encroached upon his land, and which supported a garage wall of the defendant. The defendant denied that the structures encroached upon the plaintiff's land, and further argued that the encroachment was a result of the plaintiff's excavation of his land. The defendant also argued that the plaintiff had acquiesced to the encroachment, or that it constituted a permanent improvement. The plaintiff also sought an order for the defendant to remove a wall which obstructed the plaintiff from accessing the rear of his land. The defendant argued that the wall was not an encroachment and that it was a necessary part of the defendant's property. The plaintiff further sought damages for a nuisance created by stormwater flowing from the defendant's property onto the plaintiff's land, and for a nuisance caused by the cross-defendant who had continued the nuisance. The cross-defendant argued that the nuisance had been abated.

The court was required to determine whether the encroachments constituted a permanent improvement, whether the plaintiff had acquiesced to the encroachments, and whether the encroachments could be removed. The court was also required to determine whether the stormwater ingress from the defendant's property constituted a private nuisance, and whether the cross-defendant had continued or adopted the nuisance. The court was required to determine whether the wall obstructed the plaintiff's access to his land, and whether the cross-defendant had continued the nuisance.

The court found that the encroachments did not constitute a permanent improvement, and that the plaintiff had not acquiesced to the encroachments. The court found that the encroachments could be removed. The court found that the stormwater ingress from the defendant's property constituted a private nuisance, and that the cross-defendant had continued the nuisance. The court found that the wall obstructed the plaintiff's access to his land. The court ordered the defendant to remove the encroachments and the wall, and ordered the cross-defendant to pay damages for continuing the nuisance. The plaintiff was ordered to pay the defendant one half of the costs of the proceedings.

The court ordered the defendant to remove the encroachments and the wall, and ordered the cross-defendant to pay damages for continuing the nuisance. The plaintiff was ordered to pay the defendant one half of the costs of the proceedings. The court ordered the plaintiff to pay the costs of the defendant and cross-defendant.

Orders