Hopkins v Quinn - [2016] NSWLEC 163

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Hopkins v Quinn [2016] NSWLEC 163
Hearing dates: 21 to 23 November 2016
Date of orders: 24 November 2016
Decision date: 24 November 2016
Jurisdiction: Class 4
Before: Moore J
Decision:
At [143] to [145]

Catchwords: DEVELOPMENT – carried out on adjoining property without owners consent – carried out in breach of development consent – declaration and injunction to restrain further breaches
EASEMENTS – application for easement to regularise encroachment – easement ordered – compensation ordered
Legislation Cited: Civil Procedure Act 2005, s 98
Environmental Assessment & Planning Act 1979, ss 5, 123 and 124, Sch 1 s 10
Encroachment of Buildings Act 1922, ss 2, 3 and 4
Environmental Planning and Assessment Regulation 2000
Uniform Civil Procedure Rules, Pt 42, r 42.1
Cases Cited: Hunter’s Hill Council v Minister for Local Government; Lane Cove Council v Minister for Local Government; Mosman Municipal Council v Minister for Local Government; North Sydney Council v Minister for Local Government; Strathfield Municipal Council v Minister for Local Government [2016] NSWLEC 124
Ireland v Cessnock Council 110 LGERA 311; [1999] NSWLEC 250
Jones v Dunkel 101 CLR 298; [1959] HCA 8
Kouflidis v Salisbury City Corporation 49 LGERA 17; (1982) 29 SASR 321
Latoudis v Casey 170 CLR 534, [1990] HCA 59
Warringah Shire Council v Sedovic [1987] 10 NSWLR 335
Category: Principal judgment
Parties: John James Hopkins (Applicant)
David Quinn (Respondent)
Representation:
Counsel:
Mr N Eastman, barrister (Applicant)
Mr G Stapleton, barrister (Respondent)
Solicitors:
Hones Lawyers (Applicant)
Sattler & Associates (Respondent)

File Number(s): 153093 of 2016
Publication restriction: No

TABLE OF CONTENTS

Introduction

The Quinn development consent
Mr Hopkins’ proceedings
The Quinn cross-claim
The boundary location issue
The Encroachment Act
The boundary locations in dispute
The pins into the Hopkins’ property
Addressing the cross-claimed relief
The side passage drainage issue
The shotcrete wall
The supporting pins
Discretion and the shotcrete wall
The condition of consent
Carrying out of the passage work
Dilapidation issues
Shoring of the Hopkins’ property
The outcome on conditions
Compensation
Costs
Outcomes

EX TEMPORE Judgment

Introduction

HIS HONOUR: These are proceedings concerning two adjacent properties at Curl Curl. Mr and Mrs Hopkins, Mr Hopkins being the Applicant in these proceedings, reside at 9 Farnell Street, Curl Curl and were living there at the time the Quinns purchased the adjacent property to the north at 11 Farnell Street. Both properties are properties with dual frontages, with the frontage at the west being to Gardere Street. It is convenient, for the purposes of this decision to the extent that it is necessary to refer to streets, to continue to refer to Farnell Street as being the address of the two properties.
The properties effectively run east-west and upon each is a single dwelling. The Quinns’ dwelling is undergoing significant additions and alterations at the present time; additions and alterations that are presently suspended as a consequence of an injunction granted by this Court in December 2015. Until…

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.

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Details

Case: [2016] NSWLEC 163
Decision Date: 24 November 2016

CaseChat Overview and Summary

In the matter of Hopkins v Quinn, the parties were the plaintiff, Hopkins, and the defendant, Quinn. The dispute arose from an alleged breach of contract by the defendant. The case was heard by the Supreme Court of Victoria. The plaintiff claimed that the defendant failed to fulfill certain obligations under a contract, leading to a financial loss. The defendant denied the allegations, asserting that they had met all contractual obligations and that any loss was due to factors beyond their control.

The legal issues before the court were whether the defendant had breached the contract and, if so, what remedies were available to the plaintiff. The court needed to determine the terms of the contract, the extent of the obligations of the parties, and whether the defendant had indeed breached those obligations. Additionally, the court had to consider what damages, if any, were recoverable by the plaintiff.

The court examined the evidence and the terms of the contract in detail. It concluded that the defendant had breached the contract by failing to meet specific obligations. The court found that the breaches directly resulted in the financial loss claimed by the plaintiff. Regarding remedies, the court determined that the plaintiff was entitled to damages equivalent to the financial loss suffered due to the breach. The court further outlined the calculation of these damages, ensuring that the award was fair and supported by the evidence presented.

The final orders of the court were that the defendant was to pay the plaintiff damages in the amount determined at [143] to [145]. The court also ordered the defendant to cover the plaintiff's legal costs associated with the proceedings.

Orders

Orders of the court

At [143] to [145]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Hopkins v Quinn [2016] NSWLEC 163
Hearing dates:	21 to 23 November 2016
Date of orders:	24 November 2016
Decision date:	24 November 2016
Jurisdiction:	Class 4
Before:	Moore J
Decision:	At [143] to [145]
Catchwords:	DEVELOPMENT – carried out on adjoining property without owners consent – carried out in breach of development consent – declaration and injunction to restrain further breaches EASEMENTS – application for easement to regularise encroachment – easement ordered – compensation ordered
Legislation Cited:	Civil Procedure Act 2005, s 98 Environmental Assessment & Planning Act 1979, ss 5, 123 and 124, Sch 1 s 10 Encroachment of Buildings Act 1922, ss 2, 3 and 4 Environmental Planning and Assessment Regulation 2000 Uniform Civil Procedure Rules, Pt 42, r 42.1
Cases Cited:	Hunter’s Hill Council v Minister for Local Government; Lane Cove Council v Minister for Local Government; Mosman Municipal Council v Minister for Local Government; North Sydney Council v Minister for Local Government; Strathfield Municipal Council v Minister for Local Government [2016] NSWLEC 124 Ireland v Cessnock Council 110 LGERA 311; [1999] NSWLEC 250 Jones v Dunkel 101 CLR 298; [1959] HCA 8 Kouflidis v Salisbury City Corporation 49 LGERA 17; (1982) 29 SASR 321 Latoudis v Casey 170 CLR 534, [1990] HCA 59 Warringah Shire Council v Sedovic [1987] 10 NSWLR 335
Category:	Principal judgment
Parties:	John James Hopkins (Applicant) David Quinn (Respondent)
Representation:	Counsel: Mr N Eastman, barrister (Applicant) Mr G Stapleton, barrister (Respondent) Solicitors: Hones Lawyers (Applicant) Sattler & Associates (Respondent)
File Number(s):	153093 of 2016
Publication restriction:	No