Campbell v Crane

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Campbell v Crane [2013] NSWCA 43

Hearing dates:

30 January 2013

Decision date:

06 March 2013

Before:

Bathurst CJ at [1];
Barrett JA at [2];
Tobias AJA at [3]

Decision:

Appeal dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

REAL PROPERTY - Encroachment on neighbouring property - claims for trespass - order for conveyance of narrow strip of land along boundary - damages and compensation - Whether Court erred in orders consequent on judgment of 2009 - construction of orders of Court of June 2009 - whether appellants entitled to compensation beyond the minimum amount by reference to matters set out in EBA, s 4(2)

Legislation Cited:

Encroachment of Buildings Act 1922
Uniform Civil Procedure Rules

Cases Cited:

University of Wollongong v Metwally (No 2) [1985] HCA 28; [1985] 59 ALJR 481
Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1
Grant v YYH Holdings Pty Ltd [2012] NSWCA 360

Category:

Principal judgment

Parties:

David and Margaret Campbell (Appellants)
Steven Crane (Respondent)

Representation:

Counsel:
P Bambagiotti (Appellants)
G A Sirtes SC with E Peden (Respondent)
Solicitors:
Thomas Mitchell Solicitors (Appellants)
Duncan Cotterill Lawyers (Respondent)

File Number(s):

CA60460 of 2012

Publication restriction:

No

Judgment

1. BATHURST CJ: I agree with Tobias AJA.

1. BARRETT JA: I agree with Tobias AJA.

1. TOBIAS AJA: This matter concerns a dispute between neighbours over a number of minor encroachments which has spawned litigation the costs of which, I would infer, are out of all proportion to the extent and impact of the encroachments. One of the sad, but concerning, things about the litigation is that not only has it lasted since 2007 but as it has progressed the relations between the parties have deteriorated to the point where every attempt to bring the matter to a close has been unsuccessful.

1. The properties of the parties adjoin each other. That of the appellant is located at 15 xxx Belmont (the appellants' property) whereas that of the respondent is located next door at 17 xxx Belmont (the respondent's property). The appellants alleged that there were some ten specified encroachments by the respondent on the appellants' property.

1. On 15 June 2007 the appellants commenced proceedings by way of summons seeking declarations that the respondent had encroached and trespassed upon their property and orders that the encroachments be removed and that the respondents pay the appellants damages including exemplary damages.

1. In an Amended Statement of Claim filed on 16 December 2008 the appellants sought an order under s 3(2)(c) of the Encroachment of Buildings Act 1922 (NSW) (the Act) that…