Moini Pty Limited v Lam

[2023] NSWLEC 1349

Land and Environment Court

New South Wales

Medium Neutral Citation:

Moini Pty Limited v Lam [2023] NSWLEC 1349

Hearing dates:

Conciliation Conference 14 and 27 June 2023

Date of orders:

7 July 2023

Decision date:

07 July 2023

Jurisdiction:

Class 3

Before:

Espinosa C

Decision:

The Court orders:

(1)   The appeal is upheld.

(2)   By 11 September 2024, the Respondent is to remove, at its own costs, the steel flight of stairs and hand rails, landing at the top of the stairs, and awning over the landing at the top of the stairs, attached to 59 Parramatta Road, Annandale, legally described as Lot 29 DP1023, which are encroaching on 1a Trafalgar Street, Annandale, legally described as Lot C in DP331667.

Catchwords:

APPEAL – encroachment – conciliation conference – agreement between the parties - orders

Legislation Cited:

Land and Environment Court Act 1979, ss 19, 34

Encroachment of Buildings Act 1922, ss 2, 3

Cases Cited:

Wirth v Will [2022] NSWLEC 118

Category:

Principal judgment

Parties:

Moini Pty Limited (Applicant)
Josephine Kam Shan Lam (Respondent)

Representation:

Counsel:
A Whealy (Solicitor)(Applicant)
N Hammond (Respondent)

Solicitors:
Mills Oakley (Applicant)
Robert J Kok (Respondent)

File Number(s):

2023/26254

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 3 Appeal commenced pursuant to s 3(1) of the Encroachment of Buildings Act 1922 (EB Act), seeking the removal of an encroaching structure, namely steel flight of stairs and hand rails, landing at the top of the stairs, and awning over the landing at the top of the stairs at 1a Trafalgar Street, Annandale, legally described as Lot C in DP 331667 (the Site).

2. The proceedings fall within the Court’s jurisdiction pursuant to s 19(c1) of the Land and Environment Court Act 1979 (LEC Act).

3. The Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which has been held on 14 June 2023. I presided over the conciliation conference.

4. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties and the parties filed an agreement pursuant to s 34 of the LEC Act on 27 June 2023. The parties’ decision involves the Court upholding the appeal and exercising the function under s 3 of the EB Act to grant the relief by ordering the removal of the encroachment.

5. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

6. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be the terms of s 3 of…