David Campbell v Steven Crane

[2012] NSWCA 163

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

David Campbell & Anor v Steven Crane [2012] NSWCA 163

Hearing dates:

20 April 2012

Decision date:

06 June 2012

Before:

Sackville AJA
Tobias AJA

Decision:

1.Extend the time for filing of a summons for leave to appeal from the decisions made on 2 June 2009, 6 April 2011 and 2 September 2011 until 13 June 2012.

2.Direct the applicants to file an amended summons for leave to appeal by 13 June 2012.

3.Grant the applicants leave to appeal.

4.Direct the applicants to file a notice of appeal by 20 June 2012.

5.Costs of the application to be costs of the appeal.

[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.]

Legislation Cited:

Encroachment of Buildings Act 1922
Supreme Court Act 1970
Uniform Civil Procedure Rules

Cases Cited:

Campbell v Crane [2009] NSWSC 363

Category:

Principal judgment

Parties:

David Campbell (First Appellant)
Margaret Campbell (Second Appellant)
Steven Crane (Respondent)

Representation:

Counsel:
N Coren (Applicant)
G A Sirtes SC (Respondent)
Coren Solicitors (Appellants)
Duncan Cotterill (Respondent)

File Number(s):

2012/60460

Publication restriction:

None

 Decision under appeal 

Citation:

Campbell v Crane (6 April 2011, 12997/07)

Date of Decision:

2011-04-06 00:00:00

Before:

Smart AJ

File Number(s):

12997/07

Judgment

THE COURT

1. This is a summons seeking

• an extension of time pursuant to Uniform Civil Procedure Rules ("UCPR"), r 51.10(2) for the filing of an application for leave to appeal against decisions of Smart AJ on 2 June 2009 and 6 April 2011 and of Bergin CJ in Eq on 2 September 2011;
• leave to appeal against those decisions.

1. The applicants accept that they require leave to appeal because the matter at issue does not amount to the value of $100,000 or more: Supreme Court Act 1970, s 101(r). Thus they not only require an extension of time to file their summons, but also leave to appeal.

1. The proceedings arise out of a dispute between neighbours. The applicants and the respondent owned neighbouring blocks of land in Belmont. The blocks are narrow and share a common boundary.

1. The applicants instituted proceedings seeking orders for the removal of some ten specified encroachments, and damages for trespass and aggravated or exemplary damages. They also sought orders under the Encroachments of Buildings Act 1922 ("EB Act"). By a cross-claim, the respondent sought orders (among others) under s 3(2)(b) of the EB Act for the transfer of any part of the applicants' land which had been encroached upon or the grant of an easement in his favour in respect of the encroachments.

1. The relevant provisions of the EB Act are as follows:

3 Encroachments

(1) Either an adjacent owner or…