Goncalves v Tsirakidis - [2003] NSWLEC 426

Land and Environment Court

of New South Wales

CITATION: Goncalves & Anor v Tsirakidis & Anor [2003] NSWLEC 426

PARTIES:
APPLICANTS:
Joao Manuel Goncalves and Arminda De Jesus Costa Carneiro Goncalves
RESPONDENTS:
Alkis Tsirakidis and Simela Tsirakidis

FILE NUMBER(S): 30969 of 2003

CORAM: Lloyd J

KEY ISSUES: Costs :- in Class 3 - encroachment of building - resolved without hearing - delay in removal of encroachment - respondents to pay applicants' costs including cost of surveyor's report

LEGISLATION CITED: Encroachment of Buildings Act 1922 s 14

CASES CITED: Droga & Ors v Proprietors of Strata Plan 51722, NSWLEC, Bignold J, 28 November 1997, unreported;
Hofer v Howell Developments Pty Ltd (No. 2) (2001) 113 LGERA 392;
Re The Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; Ex Parte Lai Qin (1997) 186 CLR 622

DATES OF HEARING: 15/12/2003

EX TEMPORE
JUDGMENT DATE :
12/15/2003

LEGAL REPRESENTATIVES:

APPLICANTS:
Mr J A Waters (barrister)
SOLICITORS:
Newtown Solicitors
RESPONDENTS:
Mr A P Joseph (barrister)
SOLICITORS:
N/A

JUDGMENT:

- 4 -

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

30969 of 2003

Lloyd J

15 December 2003

JOAO MANUEL GONCALVES AND

ARMINDA DE JESUS COSTA CARNEIRO GONCALVES

Applicants

ALKIS TSIRAKIDIS AND SIMELA TSIRAKIDIS

Respondents

EX TEMPORE JUDGMENT

1 In these proceedings, the applicants sought relief under the Encroachment of Buildings Act 1922 for the removal of an encroachment upon the applicants’ land, known as No. 101 Frazer Street, Marrickville. The encroaching building was a carport erected on the adjoining land, owned by the respondents, at No. 99 Frazer Street, Marrickville, which encroached across the property boundary onto the applicants’ land.

2 Since the commencement of the proceedings, the encroachment has been removed. The only outstanding question, therefore, is that of costs, including the costs of a survey.

3 Section 14 of the Encroachment of Buildings Act provides:

In any application under this Act, the court may make such order as to the payment of costs, charges and expenses as it may deem just in the circumstances and may take into consideration any offer of settlement made by either party.

4 It has been held in this Court that, in the application of s 14 of the Encroachment of Buildings Act, the Court will apply the settled principles relating to the discretion to make orders for costs. (See Droga & Ors v Proprietors of Strata Plan 51722, NSWLEC, Bignold J, 28 November 1997, unreported and Hofer v Howell Developments Pty Ltd (No 2) (2001) 113 LGERA 391.)

5 The principles to be applied where proceedings have been resolved without a hearing on the merits are explained by McHugh J in Re The Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; Ex parte Lai Qin (1997) 186 CLR 622 at 624:

In most jurisdictions today, the power to order costs is a discretionary power. Ordinarily, the power is exercised after a hearing on the merits and, as a general rule, the successful party is entitled…

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 Goncalves v Tsirakidis

Details

AGLC: Goncalves v Tsirakidis [2003] NSWLEC 426
Case: [2003] NSWLEC 426
Decision Date: 12/15/2003

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, the applicants, Joao Manuel Goncalves and Arminda De Jesus Costa Carneiro Goncalves, sought relief under the Encroachment of Buildings Act 1922 for the removal of a carport erected by the respondents, Alkis Tsirakidis and Simela Tsirakidis, which encroached upon the applicants' property at No. 101 Frazer Street, Marrickville. The carport, located on the respondents' adjoining property at No. 99 Frazer Street, Marrickville, had been in place since approximately December 1984, initially with the applicants' consent, but the consent was withdrawn in April 2003. Despite demands for its removal, the encroachment was not fully removed until September 2003, and a survey in October 2003 revealed that a minor part of the carport still encroached onto the applicants' land. The court was tasked with determining the issue of costs, including the cost of a surveyor's report.

The primary legal issue was whether the respondents should be ordered to pay the applicants' costs, including the cost of the surveyor's report, under section 14 of the Encroachment of Buildings Act. The court needed to consider the principles governing the discretion to make orders for costs, particularly in cases resolved without a hearing on the merits. The court also needed to evaluate the conduct of both parties in light of the respondents' delay in removing the encroachment and the health issues affecting the respondents' son, Aris Tsirakidis.

The court found that the applicants were almost certain to have succeeded if the matter had been fully litigated, given the clear demand for the removal of the encroachment and the eventual partial removal of the carport. The court acknowledged that the respondents had acted reasonably in light of their son's health issues but held that the respondents' delay in removing the encroachment, despite multiple reminders and warnings of impending court action, justified an order for costs. The court also found that the applicants were justified in incurring the cost of the surveyor's report, as it confirmed that part of the encroachment still remained. Therefore, the court ordered that the respondents pay the applicants' costs, including the cost of the surveyor's report.

Orders