Collick v Robinson - [2022] NSWLEC 1243

Land and Environment Court

New South Wales

Medium Neutral Citation: Collick v Robinson [2022] NSWLEC 1243
Hearing dates: 7-8 March 2022
Date of orders: 10 May 2022
Decision date: 10 May 2022
Jurisdiction: Class 3
Before: McEwen AC
Decision:
The Court orders that:
(1) Within six months of the date of these orders, or such later date as may be agreed between the parties, the applicant and the respondents are to remove the encroachments on no. 2C Dumaresq Road, Rose Bay (as depicted in the survey dated 8 July 2020 by Harrison Friedman & Associates Pty Limited) upon the following terms:
(a) The laundry and brick carport buildings are to be demolished in their entirety generally in accordance with the methodology set out in Scenario 1 in the expert report of Mr E. Brincat dated 1 October 2021 (the demolition works);
(b) The paling fence is to be demolished in its entirety.
(2) The parties are to contribute to the cost of the demolition works on a pro-rata basis according to the percentage of their respective shareholding as tenants in common in no. 4 Dumaresq Road, with the applicant to contribute 81.57% and the respondents to contribute 18.43% of such costs, provided that the respondents’ contribution is not to exceed $24,800 exclusive of GST.
(3) The applicant is to arrange and shall bear the total cost of the removal of the paling fence and of the removal of any vegetation necessary to enable the removal of such fence.
(4) The applicant is to arrange and shall bear the total cost of the erection of a new dividing fence upon the common northern boundary of no. 4 Dumaresq Road with no. 2C Dumaresq Road.
(5) The parties will instruct the building manager of no. 4 Dumaresq Road to obtain three quotes for the demolition works and instruct the building manager to accept the most cost-efficient quote and generally oversee the demolition works.
(6) The parties shall each contribute to the reasonable costs of the building manager’s fees incurred as a consequence of order 5 above, in the percentages set out in order (2) above, but irrespective of the cap.
(7) Exhibits B, D, 1 and 2 are retained and Exhibits A, C and E are returned.

Catchwords:
ENCROACHMENT OF BUILDINGS – laundry, carport and paling fence – whether construction of a new laundry should be ordered as a condition of demolition

Legislation Cited:
Encroachment of Buildings Act 1922, ss 2, 3
Land and Environment Court 1979, s 19(c1)

Cases Cited:
Hofer v Howell Developments Pty Limited [2000] NSWLEC 191
Towers v Stolyar [2017] NSWSC 526

Category: Principal judgment
Parties: Anthony Martin Collick (Applicant)
Michael Patrick Robinson (First Respondent)
Roshan Ara Robinson (Second Respondent)
Representation:
Counsel:
M Fisher (Applicant)
D Weinberger (Respondents)
Solicitors:
Rachel Clarke Legal (Applicant)
Mark O’Brien Legal (Respondents)

File Number(s): 2020/266913
Publication restriction: Nil

JUDGMENT

COMMISSIONER: These proceedings are an application for relief under the Encroachment of Buildings Act 1922 (EB Act). Pursuant to s 19(c1) of the Land…

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 Collick v Robinson

Details

AGLC: Collick v Robinson [2022] NSWLEC 1243
Case: [2022] NSWLEC 1243
Decision Date: 10 May 2022

CaseChat Overview and Summary

In the case of Collick v Robinson, the applicant sought an order for the removal of structures encroaching on the respondent's property at 2C Dumaresq Road, Rose Bay. The dispute was heard by the Supreme Court of New South Wales. The applicant, Collick, claimed that the respondents, Robinson, had encroached upon his property with various structures, including a laundry, a brick carport, and a paling fence. The case also involved the erection of a new dividing fence and the cost-sharing of the associated demolition and construction works.

The legal issues before the court included the identification and removal of the encroachments, the method of demolition, and the allocation of costs between the parties. The court was required to determine which structures were encroaching on Collick's property, the appropriate method of their removal, and the equitable division of the associated costs. The court also had to decide on the erection of a new dividing fence and the respective responsibilities of the parties in this regard.

The court found that the respondents had indeed encroached on Collick's property with a laundry, a brick carport, and a paling fence. It was determined that the appropriate method of removal for these structures was as outlined in Scenario 1 of the expert report by Mr E. Brincat. The court further ruled that the costs of demolition should be shared by the parties in proportion to their shareholding as tenants in common in the property at 4 Dumaresq Road. The cap on the respondents' contribution was set at $24,800 exclusive of GST. Additionally, the court ordered that Collick bear the total cost of removing the paling fence and any necessary vegetation, as well as the cost of erecting a new dividing fence.

In summary, the court ordered the respondents to remove the encroaching structures and shared the costs between the parties. It mandated that the most cost-efficient quote for the demolition works be accepted and overseen by the building manager of 4 Dumaresq Road. Each party was to contribute to the reasonable costs of the building manager’s fees in the same proportion as their share of the demolition costs.

Orders

Orders of the court

The Court orders that:

(1) Within six months of the date of these orders, or such later date as may be agreed between the parties, the applicant and the respondents are to remove the encroachments on no. 2C Dumaresq Road, Rose Bay (as depicted in the survey dated 8 July 2020 by Harrison Friedman & Associates Pty Limited) upon the following terms:

(a) The laundry and brick carport buildings are to be demolished in their entirety generally in accordance with the methodology set out in Scenario 1 in the expert report of Mr E. Brincat dated 1 October 2021 (the demolition works);

(b) The paling fence is to be demolished in its entirety.

(2) The parties are to contribute to the cost of the demolition works on a pro-rata basis according to the percentage of their respective shareholding as tenants in common in no. 4 Dumaresq Road, with the applicant to contribute 81.57% and the respondents to contribute 18.43% of such costs, provided that the respondents’ contribution is not to exceed $24,800 exclusive of GST.

(3) The applicant is to arrange and shall bear the total cost of the removal of the paling fence and of the removal of any vegetation necessary to enable the removal of such fence.

(4) The applicant is to arrange and shall bear the total cost of the erection of a new dividing fence upon the common northern boundary of no. 4 Dumaresq Road with no. 2C Dumaresq Road.

(5) The parties will instruct the building manager of no. 4 Dumaresq Road to obtain three quotes for the demolition works and instruct the building manager to accept the most cost-efficient quote and generally oversee the demolition works.

(6) The parties shall each contribute to the reasonable costs of the building manager’s fees incurred as a consequence of order 5 above, in the percentages set out in order (2) above, but irrespective of the cap.

(7) Exhibits B, D, 1 and 2 are retained and Exhibits A, C and E are returned.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Collick v Robinson [2022] NSWLEC 1243
Hearing dates:	7-8 March 2022
Date of orders:	10 May 2022
Decision date:	10 May 2022
Jurisdiction:	Class 3
Before:	McEwen AC
Decision:	The Court orders that: (1) Within six months of the date of these orders, or such later date as may be agreed between the parties, the applicant and the respondents are to remove the encroachments on no. 2C Dumaresq Road, Rose Bay (as depicted in the survey dated 8 July 2020 by Harrison Friedman & Associates Pty Limited) upon the following terms: (a) The laundry and brick carport buildings are to be demolished in their entirety generally in accordance with the methodology set out in Scenario 1 in the expert report of Mr E. Brincat dated 1 October 2021 (the demolition works); (b) The paling fence is to be demolished in its entirety. (2) The parties are to contribute to the cost of the demolition works on a pro-rata basis according to the percentage of their respective shareholding as tenants in common in no. 4 Dumaresq Road, with the applicant to contribute 81.57% and the respondents to contribute 18.43% of such costs, provided that the respondents’ contribution is not to exceed $24,800 exclusive of GST. (3) The applicant is to arrange and shall bear the total cost of the removal of the paling fence and of the removal of any vegetation necessary to enable the removal of such fence. (4) The applicant is to arrange and shall bear the total cost of the erection of a new dividing fence upon the common northern boundary of no. 4 Dumaresq Road with no. 2C Dumaresq Road. (5) The parties will instruct the building manager of no. 4 Dumaresq Road to obtain three quotes for the demolition works and instruct the building manager to accept the most cost-efficient quote and generally oversee the demolition works. (6) The parties shall each contribute to the reasonable costs of the building manager’s fees incurred as a consequence of order 5 above, in the percentages set out in order (2) above, but irrespective of the cap. (7) Exhibits B, D, 1 and 2 are retained and Exhibits A, C and E are returned.
Catchwords:	ENCROACHMENT OF BUILDINGS – laundry, carport and paling fence – whether construction of a new laundry should be ordered as a condition of demolition
Legislation Cited:	Encroachment of Buildings Act 1922, ss 2, 3 Land and Environment Court 1979, s 19(c1)
Cases Cited:	Hofer v Howell Developments Pty Limited [2000] NSWLEC 191 Towers v Stolyar [2017] NSWSC 526
Category:	Principal judgment
Parties:	Anthony Martin Collick (Applicant) Michael Patrick Robinson (First Respondent) Roshan Ara Robinson (Second Respondent)
Representation:	Counsel: M Fisher (Applicant) D Weinberger (Respondents) Solicitors: Rachel Clarke Legal (Applicant) Mark O’Brien Legal (Respondents)
File Number(s):	2020/266913
Publication restriction:	Nil