Lagzdins v Jones - [2001] NSWLEC 48

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 Yoshida

FILE 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 5

CASES 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 598

DATES OF HEARING: 29/01/2001

DATE OF JUDGMENT:
03/15/2001

LEGAL 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

GEOFFREY JONES & MICHIKO YOSHIDA

Respondents

JUDGMENT

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…

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: [2001] NSWLEC 48
Decision Date: 03/15/2001

CaseChat Overview and Summary

In Lagzdins v Jones, the Land and Environment Court of New South Wales was tasked with deciding an application for summary dismissal of proceedings brought by Mara Ines Lagzdins against Geoffrey Jones and Michiko Yoshida. The case centered around an encroachment dispute concerning a triangular piece of land that had been used by Lagzdins but was legally part of the property owned by Jones and Yoshida. The legal issues primarily revolved around the interpretation of the Encroachment of Buildings Act 1922 and whether the court had jurisdiction to hear Lagzdins' application. The respondents argued that the court could only consider the land directly beneath the encroachment, whereas Lagzdins contended that the entire retaining structure, including the land retained by the wall, constituted the encroachment.

The court's reasoning emphasized the need for exceptional caution when exercising the power of summary dismissal, as it should only be granted in very limited circumstances where the plaintiff's case is absolutely hopeless. The court noted that the application for summary dismissal would succeed only if it was clear that there was no real question to be tried. The court found that Lagzdins' case, though contentious, did not meet the stringent criteria for summary dismissal. The Notice of Motion was dismissed, and the matter was set for a full hearing to determine the substantive issues. The question of costs was reserved pending the outcome of the substantive proceedings.

Orders