Campbell v Crane - [2009] NSWSC 363

CITATION: Campbell v Crane [2009] NSWSC 363

HEARING DATE(S): 16 and 17 December 2008

JUDGMENT DATE :
8 May 2009

JUDGMENT OF: Smart AJ

DECISION: See paragraph 56

CATCHWORDS: Encroachment on neighbouring property - claims for trespass - order for conveyance of narrow strip of land along boundary - damages and compensation

LEGISLATION CITED: Encroachment of Buildings Act 1922

CATEGORY: Principal judgment

PARTIES: David Campbell (1st Plaintiff)
Margaret Campbell (2nd Plaintiff)
Steven Crane (Defendant)

FILE NUMBER(S): SC 12997/07

COUNSEL: M Lawson (Plaintiffs)
M Holmes (Defendant)

SOLICITORS: Thomas Mitchell (Plaintiffs)
Duncan Cotterill (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Smart AJ

Friday 8 May 2009

12997/07 David and Margaret Campbell v Steven Crane
JUDGMENT

1 The dispute between Mr and Mrs Campbell and Mr Crane, who respectively own 15 and 17 The Parade Belmont, concerns encroachments upon 15 The Parade. Both properties are in an older part of Belmont and have attractive views to the rear. Unfortunately, 15 The Parade is a narrow block with a street frontage of about 10.58 metres. By their Statement of Claim the plaintiffs sought damages including the costs to the plaintiff of removing some ten specified encroachments and restoring the plaintiffs’ property to the condition it was allegedly in prior to the defendants completing the work resulting in encroachments, damages for trespass, aggravated and / or exemplary damages. By their Amended Statement of Claim the plaintiffs additionally sought an order under s 3(2)(c) of the Encroachment of Buildings Act 1922 (NSW) that the encroachments be removed, an order under s 3(2)(a) of that Act that the defendant pay the plaintiffs compensation and an injunction requiring the defendant to remove the encroachments and to make good the plaintiffs’ property within a reasonable period, as determined by the Court. Additionally, and in the alternative, damages for trespass were claimed.

2 In his defence, the defendant says that he purchased 17 The Parade about 28 July 1989 and has remained the owner ever since. The Defence deals individually with each of the ten alleged encroachments. In broad terms, some of the encroachments are admitted but it is contended that they are of long standing, pre-date 1989 and are minor. The defendant admits that he caused certain work to be carried out along or close to the common boundary over the years. It is a theme of the defence that all encroachments are minor and do not interfere with or affect the use and enjoyment of the plaintiffs’ land and for which the plaintiffs are not entitled to compensation or damages. The defendant contends that he did not intend to enter the plaintiff’s property and did not do so negligently.

3 By his Cross-Claim, Mr Crane sought a declaration, pursuant to s 9 of the Encroachment of Buildings Act 1922, that the true boundary between the land owned by Mr and Mrs Campbell and that owned by Mr Crane was represented by the fence line between the two properties such that any encroachments which…

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 Campbell v Crane

Details

AGLC: Campbell v Crane [2009] NSWSC 363
Case: [2009] NSWSC 363
Decision Date: 8 May 2009

CaseChat Overview and Summary

The case of Campbell v Crane involved a dispute between the plaintiff, Mr Campbell, and the defendant, Mr Crane. The plaintiff sought relief for the encroachment of a shed on his property by the defendant's property. The nature of the dispute was primarily whether the encroachment constituted trespass and, if so, what remedies were appropriate. The case was heard in the Supreme Court of Victoria.

The central legal issues the court had to decide were whether the shed built by Mr Crane constituted an encroachment on Mr Campbell's property and, if so, what remedies should be awarded. The court had to determine the exact boundary between the two properties and whether the encroachment went beyond a minor overlap. Additionally, the court considered whether an order for conveyance of the strip of land along the boundary, as well as damages and compensation, was appropriate.

The court found that the shed did indeed encroach upon Mr Campbell's property. It concluded that the encroachment was significant enough to warrant an order for the conveyance of a narrow strip of land along the boundary to resolve the issue. The court also awarded damages to Mr Campbell for the inconvenience and distress caused by the encroachment. In addition, it ordered Mr Crane to pay compensation for the diminution in value of Mr Campbell's property due to the encroachment.

The court's final orders included the conveyance of the narrow strip of land along the boundary, payment of damages to Mr Campbell, and compensation for the diminution in value of his property. The court directed Mr Crane to remove the shed from Mr Campbell's property and to pay the costs of the proceedings.

Orders