Falletta v Cook

[2008] NSWSC 431

CITATION:	Falletta v Cook [2008] NSWSC 431
HEARING DATE(S):	10 April 2008
JURISDICTION:	Equity Division Duty Judge List
JUDGMENT OF:	Brereton J
EX TEMPORE JUDGMENT DATE:	10 April 2008
DECISION:	Injunction restraining obstruction of or interference with fencing work granted.
CATCHWORDS:	REAL PROPERTY – Encroachments – Garage – Dividing Fences – where order made by Local Court under Dividing Fences Act 1991, s 14 for fencing work – where one adjoining owner obstructs fencing work – whether Supreme Court can restrain obstruction in aid of statutory right of other owner
LEGISLATION CITED:	(NSW) Dividing Fences Act 1991, ss 13, 14, 15 (NSW) Encroachment of Buildings Act 1922, ss 3, 10
CATEGORY:	Principal judgment
PARTIES:	Salvatore Falletta (plaintiff) Grant William Cook (defendant)
FILE NUMBER(S):	SC 5589/07
COUNSEL:	Mr N M Carney (plaintiff)
SOLICITORS:	David Pain & Co (plaintiff)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
DUTY LIST

BRERETON J

Thursday 10 April 2008

5589/07 Salvatore Falletta v Grant William Cook

JUDGMENT (ex tempore)

1 HIS HONOUR: The plaintiff Salvatore Falletta and the defendant Grant William Cook are respectively the registered proprietors of 8 and 10 Reeve Crescent, Doonside, which are adjoining lots. The boundary fence currently between the two lots stands within Mr Falletta's land. A garage erected primarily on Mr Cook's property encroaches by up to 0.05 metres onto Mr Falletta's land and its eaves and gutters overhang by up to 0.2 metres.

2 On 23 August 2007, a Magistrate in Blacktown Local Court made an order under the (NSW) Dividing Fences Act 1991 that (a) fencing work be carried out on the common boundary of the adjoining lands at 8 and 10 Reeve Crescent, Doonside, and (b) the fencing work is to consist of the replacement of the old fence and positioning of a new fence on the boundary, with the respondent Grant Cook to pay the applicant $1,169.45 towards the cost of fencing plus $220 professional costs.

3 Mr Falletta has been prevented from having the fencing work carried out by reason of Mr Cook permanently parking a motor vehicle where the fence is to be constructed, and by the encroaching garage. By summons filed 19 November 2007, Mr Falletta claims orders commanding Mr Cook to remove the encroachment – namely the garage – within 7 days, restraining Mr Cook from obstructing and interfering with the construction of a dividing fence along the boundary, and alternative relief which it is now unnecessary to consider.

4 The summons was served on Mr Cook on 2 December 2007, as proved by the affidavit of Mark Norman Smith sworn 3 December 2007. It first came before the Court on 8 January 2008, but Mr Cook did not appear, and the proceedings were stood over to 8 February 2008. On 16 January, Mr Falletta filed a motion for summary judgment, which was also made returnable on 8 February 2008. That motion was served on Mr Cook on 19 January 2008, as appears from the affidavit of Mark Norman Smith sworn 21 January 2008.

5 On 8 February, the matter was referred by the Registrar to the Duty Judge when Mr Cook appeared and sought and obtained an adjournment to 29 February. His Honour informed the defendant that he would be well advised to seek legal assistance. On 29 February 2008, when the matter was again listed before the Registrar, Mr Cook sent a facsimile to the Court, advising that by reason of having to care for a sick child he was unable to attend, and asking if the matter could be adjourned. The proceedings were indeed adjourned to 13 March 2008, and the registry notified Mr Cook of the adjournment.

6 On 13 March 2008, Mr Cook appeared and signed consent short minutes of order of that date, providing for him to serve affidavits by 3 April, the plaintiff to serve affidavits in reply by 10 April, and adjourning the proceedings to 10 April before the Registrar.

7 When the matter was before the Registrar this morning, there was no appearance from Mr Cook and the proceedings were referred to the Duty Judge, Windeyer J – when there was again no appearance – and subsequently to me for hearing. Mr N M Carney of counsel informs me that further steps have been taken to inquire in the course of the morning as to whether there has been any belated appearance by Mr Cook, to no avail.

8 I am satisfied by the history that I have recorded, and particularly by his signature of the short minutes of 13 March 2008, that Mr Cook is on notice of the proceeding before the Court today.

9 (NSW) Encroachment of Buildings Act 1922 provides, by s 3, that either an adjacent owner or an encroaching owner may apply to the Court for relief under that Act in respect of any encroachment, and that on the application the Court may make such orders as it may deem just with respect to, inter alia, the removal of the encroachment. While in that Act "Court" is defined as "the Land and Environment Court" [s 2], s 10 provides that in any proceedings before the Supreme Court, the Supreme Court may if it sees fit exercise any of the powers conferred on the Land and Environment Court by the Act.

10 (NSW) Dividing Fences Act 1991, s 13, confers on a Local Court jurisdiction to hear and determine matters arising under the Act. Section 14 provides that a Local Court may in respect of an application under that Act may make various orders determining, inter alia, the fencing work to be carried out, the manner in which contributions are to be apportioned and re-apportioned, and which portion of the fence is to be constructed or repaired by either owner. It was no doubt pursuant to s 14 that the order of the Blacktown Court, to which I have referred, was made.

11 Section 15, entitled “Enforcement of Agreements and Orders”, provides that if an order is made by a Local Court, and an adjoining owner bound by the order fails within the specified time to comply with the order, the other adjoining owner may carry out the necessary fencing work as determined by the order; and may recover from the defaulting adjoining owner the amount ordered to be paid by that owner. Section 15(2) provides that the specified time is the time specified in the order, or if no time is specified, within three months after the making of the order.

12 The order of the Blacktown Court did not specify a time, but it was made on 23 August 2007, and three months from that elapsed on 23 November 2007, just a couple of days after the summons was filed.

13 Although the plaintiff might not have been entitled to the injunction claimed in order 2 when the summons was filed, it seems to me that this Court can give effect to the statutory rights conferred by s 15 by making orders in aid of the exercise of those rights. Such an order is not one of the matters entrusted to the Local Court under ss 13 and 14 but would involve this Court in acting in aid of the statutory right conferred by s 15.

14 Obviously, Mr Cook not having appeared, no reason has been put to the Court as to why it ought not exercise its power to make such an order, and an order for removal of the encroachment.

15 My orders are:

1. Order that within 28 days the defendant remove the encroachment on the plaintiff's property situate at and known as 8 Reeve Crescent Doonside, being the land comprised in folio identifier 19/259559, constituted by so much of the garage standing primarily on the defendant's property situate at and known as 10 Reeve Crescent Doonside, being the land comprised in folio 18/259559,

2. Order that the defendant be restrained from, by himself, his servants and agents, interfering with or obstructing the construction by the plaintiff of a dividing fence along the boundary between the plaintiff’s and the defendant's property in accordance with the orders of the Local Court at Blacktown made on 23 August 2007.

3. Order that the defendant pay the plaintiff's costs.

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