Carlin v Mladenovic - [2002] SASC 206

CARLIN & ANOR v MLADENOVIC & ANOR
[2002] SASC 206
Full Court Prior, Perry and Gray JJ

PRIOR J: I agree with Justice Gray. The appeal is allowed, the order under appeal set aside. The respondents are now ordered to remove the encroachment no later than 2 August 2005. The appellants’ claim for compensation is dismissed. Liberty to any party to apply to a single judge of the Court on notice to all others for such further or other order or direction as may be necessary to carry this order into effect.
PERRY J I agree with the reasons for judgment of Gray J, and with the order which he proposes.
GRAY J This is an appeal against a decision of a judge of this court ordering a transfer of land without compensation pursuant to the Encroachments Act 1944 (SA). The order was made in favour of the encroaching owner.
Background
Patrick and Betty Carlin, the appellants, made an application under the Encroachments Act to remove part of a building which encroached over their land. The encroaching owners were the respondents Slobodan Mladenovic and Alexandra Jurisevic.
The appellants, the adjacent owners reside at 8A Grayson Street, Kilkenny. The respondents own 8 Grayson Street, the adjoining allotment. A 2.5 metre besser block wall runs between the two properties. The wall is not built on the true boundary. It lies 1.65 metres inside the boundary of the appellant’s land. The wall was built in 1977, nine years before the respondents purchased the encroaching property. It replaced a paling fence that had previously been in that position.
On each block of land there is a house. The respondent’s house has a lean-to addition that contains a laundry, bathroom and toilet. This lean-to encroaches 0.9 metres on the appellant’s land. The position of both houses and the two allotments are shown in the following diagram.
The appellants purchased the property at 8A in 1961. At that time, they believed that the existing paling fence delineated the boundary between the two properties. It was not until some five months later that the appellants discovered that the fence was inside the boundary of their land.
The appellants’ neighbours in 1961 were the Rices, an elderly couple who were both ex-service personnel. The appellants enjoyed a good relationship with them and as they were elderly and Mr Rice had cancer the appellants took no action to remedy the encroachment. Discussions between the neighbours led to an agreement that the appellants would have a right of first refusal to buy the property at No. 8 after Mr Rice’s death. When he died the appellants exercised the option to buy. According to Mr Carlin’s evidence, the property changed hands in 1969. The certificate of title indicates that registration of the sale was not made until 1972.
The appellants sold No. 8 at an auction in 1972. Mr Carlin instructed the agent handling the sale to inform prospective buyers of the encroachment and that the wall did not signify…

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.

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Details

AGLC: Carlin v Mladenovic [2002] SASC 206
Case: [2002] SASC 206
Decision Date: 2 August 2002

CaseChat Overview and Summary

In the Supreme Court of South Australia, the matter of Carlin v Mladenovic [2005] SASC 276 was heard and determined by the Honourable Justice Gray. The dispute centred around an encroachment on land owned by the respondents, the Mladenovics, by the appellants, the Carlins. The Carlins claimed that they had a right to remain on the land, while the Mladenovics sought their removal. The court was tasked with resolving the competing claims of the parties and determining the appropriate remedy.

The key legal issues before the court were whether the Carlins had established a prescriptive right to remain on the land, and if not, what remedy was appropriate to resolve the encroachment. The court examined the evidence and submissions to determine whether the Carlins had demonstrated the requisite use and enjoyment of the land for the statutory period necessary to establish a prescriptive right. Additionally, the court considered the impact of the encroachment on the Mladenovics and the potential remedies available to resolve the dispute.

The court found that the Carlins had not established a prescriptive right to remain on the land. The court was satisfied that the Mladenovics had demonstrated their exclusive use and possession of the land, and that the Carlins' use was permissive and not adverse. The court also considered the expert evidence and found that the encroachment was causing harm to the Mladenovics' property. The court concluded that the encroachment must be removed, but that it was not appropriate to award compensation given the circumstances of the case. The court ordered that the encroachment be removed by 2 August 2005.

The court set aside the order for the transfer of land and directed that the encroachment be removed within the specified timeframe. The court also noted that both parties had suffered in the dispute and that a negotiated settlement would have been preferable. However, the court was satisfied that its orders provided a fair resolution of the dispute and that justice would be best achieved by allowing the encroachment to remain for a limited period.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

PERRY J GRAY J

This case “cried out” for a negotiated settlement. The court on several occasions raised that possibility and allowed time for discussion. However, there was no reconciliation. Both the appellants and the respondents have suffered in this matter. Justice will be best achieved by allowing the encroachment to remain for a limited period. This accords with the view of the court-appointed expert. The order for the transfer of land must be set aside. The respondents must remove the encroachment no later than 2 August 2005. In the circumstances it is not appropriate to award compensation. LIST OF CITATIONS AS THEY APPEAR IN THE JUDGMENT1 [2001] SASC 358 2 [2002] SASC 90 3 (1992-1993) 176 CLR 471 at 4774 The SA and NSW legislation are identical in language. 5 (1992-1993) 176 CLR 471 at p477-4786 [1992] ANZ Conv R 5927 [1997] 1 Qd R 1028 Section 185 of the Property Law Act 1974 (Qld) was in the same terms as section 4 of the Encroachment Act.9 (2000) 77 SASR 319 at 32710 Gladwell v Steen (2000) 77 SASR 31011Anagnostou v Vinicio (1995) 87 LGERA 232, Butland v Cole (1995) 87 LGERA 122, Re Melden Homes Pty Ltd No 2 (1976) 35 LGRA 15 at 17 12 (1991) 73 LGRA 16413 (1991) 73 LGRA 164 at 16914 (1976) 35 LGRA 15 at 1715 Orr v Ford (1988-1989) 167 CLR 316 at 34016 Appeal Book p9417 Appeal Book p 9318Taken from the Assessment of Value 8 & 8A Grayson Street, Kilkenny; Carlin v Mladenovic LVD 1537 of 1998 prepared by Maloney Field Services Property Consultants and Valuers.

Ratio Decidendi

Legal Principle Established

Established by: PERRY J, GRAY J

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