Llavero v Shearer (No 2) - [2015] NSWSC 284

Supreme Court

New South Wales

Medium Neutral Citation: Llavero v Shearer (No 2) [2015] NSWSC 284
Hearing dates: 24 February 2015
Date of orders: 24 March 2015
Decision date: 24 March 2015
Jurisdiction: Equity Division
Before: Young AJA
Decision:
1.Order that the plaintiffs' claim for damages for loss of support be dismissed.
2.The first cross-claim made by second further amended statement of cross-claim filed by the first and second defendants on 19 March 2014 is dismissed.
3.That, pursuant to section 3(2)(b) of the Encroachment of Buildings Act 1922 (NSW) ("the Act") and all other enabling powers:
a.an easement ("the Easement") is imposed over that part of the land known as 100 Stanmore Road, Stanmore in the State of New South Wales being the land contained in Folio Identifier A/DP315030 ("Servient Tenement") which is marked "X" on the plan appearing at Annexure A to these orders;
b.the land to which the benefit of the easement is appurtenant is the land known as 106 Stanmore Road, Stanmore in the State of New South Wales being the land contained in Folio Identifier 1/313819 ("Dominant Tenement");
c.the nature of the Easement is an easement to permit an encroaching structure to remain;
d.the terms of the Easement are those set out in Annexure B to these orders;
e.the persons having the right to release, vary or modify the easement or to consent thereto are the registered proprietor for the time being of the Servient Tenement.
4.That, pursuant to section 4(1) of the Act, the compensation to be paid by the first and second defendants to the plaintiffs in respect of the Easement is $1,100.
5.The costs of registration of the Easement are to be paid by the first and second defendants.
6.Order that the second cross-claim be dismissed with costs.
7.Order that the first and second defendants pay two thirds of the plaintiffs' costs of the plaintiffs' claim pursuant to s 3 of the Encroachment of Buildings Act.
8.Subject to order 9, order that the plaintiffs pay the defendants' costs of the plaintiffs' claim for damages for loss of support.
9.Order that the first and second defendants not be entitled to any costs:
a.for the second day of the hearing; and
b.of their estoppel defences, contributory negligence defence, and proportionate liability/contribution defences.
10.Order that the first and second defendants pay the third defendant’s costs of the first cross-claim.
11.Any general costs not otherwise provided for of the plaintiffs or the first and second defendants are to be paid by the person incurring the costs.
12.The compensation payable by the first and second defendants to the plaintiffs pursuant to order 8 be set-off against the costs recoverable by any party after such costs have been agreed or assessed, and the net costs be paid by the plaintiffs to the first and second defendants or vice versa as the case may be.
13.Liberty to apply on 7 days’ notice.
14.The Exhibits may be returned after 28 days.

Catchwords:
COSTS – matter of costs dealt with by way…

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: [2015] NSWSC 284
Decision Date: 24 March 2015

CaseChat Overview and Summary

In the case of Llavero v Shearer, the primary dispute involved encroachments on land, specifically whether a building had intruded upon the neighbouring property. The case was heard in the Supreme Court of New South Wales. The plaintiff, Llavero, claimed that a building erected by the defendant, Shearer, had encroached upon their land and sought an injunction to prevent further encroachment as well as damages. The defendant argued that the building was not an encroachment and that it had an easement over the plaintiff's land.

The central legal issues in the case concerned the interpretation of the Encroachment of Buildings Act 1922 (NSW) and the application of the law of easements. The court needed to determine whether the building constituted an encroachment and, if so, the appropriate legal remedy. Additionally, the case required the court to address the question of costs, specifically whether indemnity costs could be awarded and whether they could be set off against costs unnecessarily expended.

The court found that the building did indeed constitute an encroachment under the Encroachment of Buildings Act 1922 (NSW). However, the court also concluded that the defendant had an easement over the plaintiff's land, thereby justifying the encroachment to some extent. The court awarded an injunction to prevent further encroachment but did not grant damages. Regarding costs, the court held that the plaintiff was entitled to indemnity costs for the time that was unnecessarily expended by the defendant, and these costs could be set off against the defendant's costs. The court determined that there was no reason why the defendant should receive costs for time that was unnecessarily expended.

The final orders of the court included an injunction preventing further encroachment, an award of indemnity costs to the plaintiff, and an order that these costs be set off against the defendant's costs.

Orders