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 an encroaching owner may apply to the Court for relief under this Act in respect of any encroachment.

(2) On the application the Court may make such orders as it may deem just with respect to:

(a) the payment of compensation to the adjacent owner,

(b) the conveyance transfer or lease of the subject land to the encroaching owner, or the grant to the encroaching owner of any estate or interest therein or any easement right or privilege in relation thereto,

(c) the removal of the encroachment.

(3) The Court may grant or refuse the relief or any part thereof as it deems proper in the circumstances of the case, and in the exercise of this discretion may consider amongst other matters:

(a) the fact that the application is made by the adjacent owner or by the encroaching owner, as the case may be,

(b) the situation and value of the subject land, and the nature and extent of the encroachment,

(c) the character of the encroaching building, and the purposes for which it may be used,

(d) the loss and damage which has been or will be incurred by the adjacent owner,

(e) the loss and damage which would be incurred by the encroaching owner if the encroaching owner were required to remove the encroachment,

(f) the circumstances in which the encroachment was made.

(4) The Court may refer to any registered land surveyor (within the meaning of the Surveying and Spatial Information Act 2002), or to any registered valuer (within the meaning of the Valuers Act 2003), any question involved in proceedings on the application.

(5) This section applies to encroachments made either before or after the commencement of this Act.

4 Compensation

(1) The minimum compensation to be paid to the adjacent owner in respect of any conveyance, transfer, lease, or grant to the encroaching owner shall, if the encroaching owner satisfies the Court that the encroachment was not intentional and did not arise from negligence, be the land value of the subject land, and in any other case three times such land value.

(2) In determining whether the compensation shall exceed the minimum, and if so by what amount, the Court shall have regard to:

(a) the value, whether improved or unimproved, of the subject land to the adjacent owner,

(b) the loss and damage which has been or will be incurred by the adjacent owner through the encroachment and through the orders proposed to be made in favour of the encroaching owner,

(c) the circumstances in which the encroachment was made.

1. In a judgment delivered on 8 May 2009, Smart AJ found that there were encroachments which he described as minor. He awarded the applicants damages of $6,500 for trespass but dismissed the claim for aggravated or exemplary damages: Campbell v Crane [2009] NSWSC 363. The applicants do not complain about these matters.

1. Smart AJ stated (at [54]) that he would order the applicants to convey to the respondent a narrow strip 0.3 metres wide adjacent to and along the eastern boundary of the applicants' land. His Honour was not satisfied that the encroachments did not result from negligence (at [55]). Compensation was to be payable by the respondent in accordance with s 4 of the EB Act. His Honour suggested that the parties should endeavour to reach agreement as to compensation but, in default of agreement, the issue was to be referred to an expert valuer.

1. The parties did not agree and in a judgment given on 2 June 2009, Smart AJ made a series of detailed orders providing, among other things, for an expert determination of the compensation payable to the applicant: Campbell v Crane (2 June 2009, 12979/07).

1. The orders did not state under which provision of the UCPR the expert determination was to be made. In a subsequent judgment delivered on 6 April 2011, Smart AJ said that he had intended to make a reference pursuant to UCPR, Part 20, Div 3: Campbell v Crane (6 April 2011, 12997/07).

1. An expert, Mr MC Whelan, prepared a report on 23 April 2010. This report determined that the value of the strip of land to be conveyed was $15,000. Accordingly, three times that value was $45,000. It also determined that the respondent should pay an additional amount of $72,150 by way of compensation, including $63,700 for fire rating to the applicants' western wall said to be consequential on the reduction of the distance between that wall and the new common boundary.

1. In the judgment of 6 April 2011, Smart AJ noted (at [27]) that neither during the original hearing, nor on 2 June 2009 when the orders were settled, had he been made aware that the applicants would claim additional compensation pursuant to s 4(2)(b) of the EB Act over and above the minimum compensation of three times the value of the strip of land to be transferred to the respondent provided for by s 4(1) of that Act. Had his Honour been aware of this issue, he may have made different orders. In particular, he would have made orders dealing with the applicants' claim for $72,150.

1. Smart AJ said (at [31]-[33]) that it was:

"apparent that I have proceeded upon a misapprehension of the factual consequences of the orders made. It is a pity that these were not drawn to my attention when settling the orders of 2 June 2009 or on any adjournment. The [applicants], until they received the report of August 2009 of [their own expert], may not have appreciated the possible ramifications of what was ordered. I did not appreciate those ramifications until I read Mr Whelan's report. The requirements of Lake Macquarie City Council [also] require further investigation.

The orders made on 2 June 2009 have been passed and entered, so I cannot recall them or add to or vary them, even if to do so was otherwise correct. The Court of Appeal is not so limited. It may consider granting leave to appeal in the circumstances."

1. His Honour then concluded that the expert's report should not be adopted and that the respondent should be ordered to pay only $45,000 as the sum required for the transfer of the strip of land.

1. Further detailed orders were made by Bergin CJ in Eq on 2 September 2011 to give effect to Smart AJ's judgment.

1. The applicants wish to challenge the decision of Smart AJ not to accept what they say is the amount of compensation assessed in conformity with the orders made on 2 June 2009. This challenge will presumably involve interpreting those orders and determining whether the assessment by the expert was carried out in conformity with the orders.

1. The respondents resist the grant of leave to appeal on the ground, among others that they were denied procedural fairness, in that they did not have an opportunity to adduce evidence before Mr Whelan or to challenge material on which Mr Whelan relied.

1. At the conclusion of the hearing the matter was adjourned in order to allow the parties to reach agreement as to the future conduct of the litigation that would minimise the costs and avoid the uncertainties of the appellate process. Unfortunately, the parties were not able to reach agreement.

1. Having regard to the history of this matter, the comments made by Smart AJ to which we have referred and the apparent ambiguity of the orders including (possibly) a misunderstanding as to the effect of s 4(2)(b) on the amount of compensation under s 3(2)(a), the applicants should be granted leave to appeal, subject to also being granted an extension of time. While there was a delay of some four months in filing the summons seeking leave to appeal, we do not think that the respondent has suffered prejudice by the delay and that an extension of time should be granted.

1. The Court therefore makes the following orders:

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.

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Decision last updated: 06 June 2012