Lagzdins v Jones
[2001] NSWLEC 48
•03/15/2001
Land and Environment Court
of New South Wales
CITATION: Lagzdins v Jones & Anor [2001] NSWLEC 48 PARTIES: APPLICANT
Mara Ines Lagzdins
RESPONDENTS
Geoffrey Jones and Michiko YoshidaFILE NUMBER(S): 30153 of 2000 CORAM: Sheahan J KEY ISSUES: Practice & Procedure :- Notice of Motion for summary dismissal LEGISLATION CITED: Encroachment of Buildings Act 1922
Supreme Court Rules 1970 Part 13, Rule 5CASES CITED: Air ServiceAustralia v Zarb CA 40570 of 1997;
Amatek Ltd v Googoorewon Pty Ltd (1992-93) 176 CLR 471;
Bayne v Riggall (1906) 6 CLR 382;
Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937;
Daniel Droga & Ors v The Proprietor of Strata Plan 51722 (1996) 93 LGRA 120;
Dey v Victorian Railways Commissioners (1949) 78 CLR 62;
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125;
Healam v Hunter & Anor (1991) NSW ConvR 55-569;
Pappin v Balranald Aboriginal Land Council [2000] NSWLEC 263;
Tallon v The Proprietors of Metropolitna Towers Building Units Plan No.5157 (1997) 1 QdR 102;
Webster & Anor v Lampard (1993) 177 CLR 598DATES OF HEARING: 29/01/2001 DATE OF JUDGMENT:
03/15/2001LEGAL REPRESENTATIVES:
APPLICANT
Mr W R Davison SC
with Mr A Fernon (Barrister)
Solicitors
Mr Paul Crane
RESPONDENTS
Mr Hugh Stowe (Barrister)
Solicitors
Fishburn Watson O'Brien
JUDGMENT:
MARA INES LAGZDINS
Applicant
v
GEOFFREY JONES & MICHIKO YOSHIDA
Respondents
Introduction
1. These are class 3 proceedings, in which the applicant seeks an order under the Encroachment of Buildings Act 1922 (“the Act”), and they have now been set down for hearing on 30 April 2001.
2. This judgment concerns an application by the respondents for summary dismissal of the proceedings, pursuant to the provisions of Part 13 Rule 5 of the Supreme Court Rules 1970, which apply in this court. It is effectively a “strike out” application.
3. Part 13, Rule 5 allows the court the discretion to stay or dismiss proceedings if:
(a) no reasonable cause of action is disclosed.
(b) the proceedings are frivolous or vexatious, or
(c) the proceedings are an abuse of process of the court.
The relevant lands and the encroachment
4. As I understand the position, Lagzdins owns Lot 2 of Deposited Plan 859386, and Jones and Yoshida own Lot 1. Both parties purchased their respective properties in 1996 or 1997 from Mr and/or Mrs Budin - Lots 1 and 2 were created by a subdivision registered on 22 May 1996.
5. Lagzdins bought the land and improvements on Lot 2, including a house which dates back to the early 1970’s, but has been renovated, and has a swimming pool. Budin then proceeded to build a home on the remnant Lot 1 during 1996/7, and subsequently sold it to Jones and Yoshida.
6. Lot 1 comprises a total area of 317.7m2 and Lot 2 935.7m2. Lot 2 is known as 27 Macauley’s Headland Drive and is located at the corner of Richmond Drive, Coffs Harbour. Lot 1 is located to its north and faces east to be No.3 Richmond Drive.
7. The case concerns a triangular area of land (“the triangular land”), which is, according to the title, part of Lot 1, but has been used by the applicant as if it were part of Lot 2. It has an area of 34.19 (or 36.8)m2 and a frontage to Richmond Drive. Looked at from Lot 2’s point of view it is a logical part of the outdoor entertaining and landscape/garden area adjacent to the swimming pool.
8. There is ready and immediate access to the triangular block from Lot 2, but the only access to it from Lot 1 requires negotiating a very narrow passage on the southern side of the house on Lot 1.
9. There is nothing on the title to indicate that anyone other than the owner of Lot 1 has any right to the triangular land. Apparently Budins never intended to use it themselves, and were seeking only to apportion the land so as to achieve consent for their subdivision (see T4 L25-30). They were happy for Mrs Lagzdins to use it, improve it, and treat it as her own, but no easement was ever effected, as intended, and Jones and Yoshida purchased without knowledge of the agreement reached between Budin and Lagzdins in this regard.
10. Built partially within the triangular land is a retaining wall, some 36m in length, and made of concrete blocks. Looked at from the south, it runs north, generally parallel to Richmond Drive, within the privately owned lands, through a short “dogleg”, and then continues parallel to the street, past the pump shed of Mrs Lagzdins’ pool, and into the triangular land. When it reaches a point very close to the northern edge of the triangular land, it turns approximately 100 degrees west towards the south-eastern corner of the house on Lot 1, which is built very close to the established and undisputed east-west boundary between the two properties.
11. Most of the triangular land is embraced by the wall, but not all. Within the triangular land is a substantial Norfolk Pine tree. The wall was apparently built at the applicant’s expense to retain her pool and outdoor entertainment area, and to protect that tree. The wall, therefore, plays a significant part in the landscaping, privacy and entertainment arrangements of Lot 2. At various points, the wall is approximately 3m in height, and elsewhere, apparently, not less than 1.5m in height. Half of its length in general terms would appear to be in Lot 2 and half of it in Lot 1. Lot 2 is higher than Lot 1. The area retained extends beyond the applicant’s land, and the levels “are controlled by the retaining wall” (T3 L31-44).
12. The Budins and Lagzdins had no boundary fence, but the intention of the respondents to build one, and cut the tree down, appear to have brought the current encroachment problem to a head.
13. As I understand the applicant’s argument, she contends that the encroachment is the whole “retaining structure” supporting the pool, and not just the wall which retains the material forming part of that structure supporting the pool. Mr Davison said (T1 L43-53):
The encroachment is in the form of a retaining structure which has a number of components, primarily a retaining wall, which is around the outer edge, footings for that retaining wall and the material between the wall and the structure support (sic) it, namely a swimming pool, in the form of rocks and rubble and soil. The retaining structure is partly upon the applicant’s land and partly upon the respondent’s land and the application is made under the Encroachment of Buildings Act for the transfer of the land the subject of the supporting structure and the ancillary structures.
14. The respondents contend that the only encroachment is the relevant part of the retaining wall, and that this court has no jurisdiction to deal with the issue in the terms argued by the applicant. Mr Stowe said (T2 L17-20):
… there is in fact no jurisdiction under the Act to make any orders with respect to any land except that land which is directly vertically underneath the retaining wall …
and (T32 L6-11):
… in my submission there is no basis in the evidence for the suggestion that the land between the retaining wall and the swimming pool can be properly characterised as a permanent and substantial man-made structure, which would justify the conclusion that it comprises a building.
15. It can, therefore, be seen from these quotations that Mr Davison says the encroachment is a retaining structure comprising the wall, its footings and the “rocks, rubble and soil” so retained, whereas Mr Stowe argues that, as the wall retains only “land”, that wall can be the only encroachment, in the sense of a “building”.
16. Mr Davison submits that on a “strike out” application, the court cannot determine that question and should not prejudge what the trial judge might conclude. (See T26 L28-T28 L19).
The proceedings
17. Leave was granted during the course of the hearing of the “strike out” motion for the filing of an Amended Class 3 application, in which the applicant seeks the following relief:
The Applicant seeks an order under section 3(2) of the Encroachment of Buildings Act 1922 that the triangular piece of land forming part of the land known as Lot 1 DP 8659386 and identified with the hatch marking on the survey plan annexed, be transferred to her. Alternatively, the Applicant seeks an order that an easement be granted over the said land in favour of her land known as Lot 2 DP 8659386 requiring the physical integrity of the said land to be maintained, or creating an easement for support for the existing structure on the said land, or such other order as the court sees fit.
18. Orders were made by Talbot J, and continued by Lloyd J, restraining the respondents from interfering with the physical condition of the triangular land while the proceedings are pending.
19. The applicant has so far succeeded, therefore, in establishing a serious issue to be tried, such that interlocutory relief was granted.
The submissions in more detail
20. Mr Stowe’s argument on the respondents’ behalf is set out in comprehensive written submissions to the following effect (emphasis added):
(a) Section 3(2) makes clear that the court has jurisdiction only to make orders in relation to “ the subject land ”.
(b) “ Subject land ” is defined to mean “ that part of the land over which an encroachment extends ” (s2).
(c) “ Encroachment ” is defined by s2 to mean “ encroachment by a building , and includes encroachment by overhang of any part as well as encroachment by intrusion of any part in or upon the soil”.
(d) “ Building ” means under s 2 “ a substantial building of a permanent character ” and includes a “ wall ”.
(e) Accordingly, these terms being given their ordinary meaning, the jurisdiction of the court is limited to “ land which is vertically beneath a building which encroaches across a boundary ” (submissions par 9).
21. His argument calls up the question of what in this case is the “substantial building of a permanent character”.
22. The whole of the triangular land could not, on Mr Stowe’s argument, become part of “the land vertically beneath the encroachment”. He relies on what the High Court said in Amatek Limited v Googoorewon Pty Ltd (1992-93) 176 CLR 471 at 477:
So far as one may define the purpose of the Act from its long title, that purpose does not extend to the conferring of a general power to change the boundaries between contiguous parcels of land. It is an Act ‘to make provision for the adjustment of boundaries where buildings encroach on adjoining land; to facilitate the determination of boundaries; and for the purposes connected therewith’. The twin purposes of the Act are to facilitate the determination of existing boundaries (provided for by s. 9) and to permit the adjustment of boundaries when, but only when, buildings encroach on adjoining land (provided for by s. 3). The language of the Act shows clearly that the encroachment to which it relates is not an encroachment by a person but an encroachment by a building: the definition of ‘encroachment’ in s. 2 explicitly says so. The term is defined by extension to include ‘encroachment by overhang of any part’ or ‘by intrusion of any part in or upon the soil’. By the definition of ‘subject land’, the land of the ‘adjacent owner’ which the court may order to be conveyed, transferred or leased to the encroaching owner pursuant to s. 3(2)(b) is only ‘that part of the [adjacent owner’s] land over which an encroachment extends’. The subject land is thus identified as the land vertically under the encroachment.
23. Mr Stowe also took the court to other authorities pre-dating and post-dating Amatek, such as Healam v Hunter & Anor (1991) NSW ConvR 55-569, and Tallon v The Proprietors of Metropolitan Towers Building Units Plan No.5157 (1997) 1 QdR 102, at 107.
24. Arguing that the retaining “structure” as a whole is a “substantial building of a permanent character”, Mr Davison’s written submissions say that the passage Mr Stowe quoted from Amatek is obiter only. In Amatek there was no encroachment across the boundaries, as required by the definition, and no jurisdiction existed as a result of that conclusion. As Mr Davison says (written submissions par 10):
The High Court did not consider a case such as this one where the retaining wall of the encroaching owner effectively creates a V shaped piece of land on the neighbouring land within its boundaries. If there was a roof from one side of the V to the other, or the land within that area was concreted or possibly paved, there could be no doubt it was an encroachment. Simply because it does not have a roof or some form of flooring, should it be prevented from falling within the parameters of the legislation.
25. He relies further on the judgment of Stein J in Daniel Droga & Ors v The Proprietor of Strata Plan 51722 (1996) 93 LGRA 120 (at 122-3), and says an application such as that currently before me is designed to preclude the final determination, at a full hearing, of the issue which attracted the court’s grant of interlocutory relief.
The power to “strike out”
26. As Cowdroy J noted recently, in Pappin v Balranald Aboriginal Land Council [2000] NSWLEC 263 (at par 16), summary dismissal will be granted only in very limited circumstances, as prima facie a plaintiff is entitled to have his case come to trial.
27. The exercise of the summary dismissal power must be reserved for “actions that are absolutely hopeless” - see Dey v Victorian Railways Commissioners (1949) 78 CLR 62 (at 91 per Dixon J), and Bayne v Riggall (1906) 6 CLR 382 (at 398 per Barton J).
28. In General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 (at 129), Barwick CJ said:
… the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action - if that be the ground on which the court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated. The test to be applied has been variously expressed; ‘so obviously untenable that it cannot possibly succeed’; ‘manifestly groundless’; ‘so manifestly faulty that it does not admit of argument’; ‘discloses a case which the Court is satisfied cannot succeed’; ‘ under no possibility can there be a good cause of action’; ‘be manifest that to allow them’ (the pleadings) ‘to stand would involve useless expense’.
As I have said, some of these expressions occur in cases in which the inherent jurisdiction was invoked and others in cases founded on statutory rules of court but although the material available to the court in either type of case may be different the need for exceptional caution in exercising the power whether it be inherent or under statutory rules is the same.At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or ‘so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument’; ‘so to speak apparent at a glance’.
29. In Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937, Cross J said (at 944-5) that it is a:
- fundamental principle … that prima facie a plaintiff is entitled to have his case come to trial; and applications to deprive him of that right will succeed only in the clearest of cases.
30. In Webster & Anor v Lampard (1993) 177 CLR 598 (at 602) Mason CJ, Deane and Dawson J said the power “… should never be exercised unless it is clear that there is no real question to be tried”.
31. The relevant authorities were also surveyed by the Court of Appeal in Air Services Australia v Zarb (CA 40570 of 1997, judgment 26 August 1998, Rolfe AJA (at pp 13ff)).
Determination
32. The interpretation and application of the relevant sections of the Act will give rise to substantial debate at the hearing.
33. The applicant wants to argue that what looks like the encroachment, namely the wall, is only part of an overall man-made structure.
34. Her argument may succeed or it may fail, but it could not be said that her case, as thus far outlined to the court, fits the definitions “frivolous”, “vexatious”, or “abuse of process”, nor that no reasonable cause of action is disclosed, as required by the relevant rules.
35. The Notice of Motion is dismissed.
36. The question of costs is reserved, pending determination of the substantive proceedings.
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