Moini Pty Ltd ATF Moini Property Ross Street Glebe Trust v The Owners - Strata Plan No. 91066

[2021] NSWLEC 1590

Land and Environment Court

New South Wales

Medium Neutral Citation:

Moini Pty Ltd ATF Moini Property Ross Street Glebe Trust v The Owners – Strata Plan No. 91066 [2021] NSWLEC 1590

Hearing dates:

Conciliation conference on 30 June, 22 July, 17 August and 2 September 2021

Date of orders:

8 October 2021

Decision date:

08 October 2021

Jurisdiction:

Class 3

Before:

Horton C

Decision:

See orders at [12]

Catchwords:

ENCROACHMENT OF BUILDINGS – registration of easement – removal of the remaining encroachment – conciliation conference – agreement between the parties – orders

Legislation Cited:

Conveyancing Act 1919, s 88B, Schedule 8

Encroachment of Buildings Act 1922, ss 2, 3, and 14

Land and Environment Court Act 1979, ss 16, 19(c1), and 34

Category:

Principal judgment

Parties:

Moini Pty Ltd ATF Moini Property Ross Street Glebe Trust (Applicant)
The Owners – Strata Plan No. 91066 (Respondent)

Representation:

Counsel:
A Adams (Solicitor) (Applicant)
L Raffaele (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Bartier Perry (Respondent)

File Number(s):

2020/278821

Publication restriction:

No

Judgment

1. COMMISSIONER: These Class 3 proceedings were brought by the applicant, Moini Pty Ltd, as the registered proprietor of Lot 1 DP 736285 and Lot 2 DP 792115, otherwise known as 13-15 Ross Street, Glebe, against the Respondent, who is the registered proprietor of SP 91066 at 11 Ross Street, Glebe.

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 30 June 2021. I presided over the conciliation conference.

3. 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. This decision involves the registration of the extension of a vertical cross-easement for the common boundary wall with the Land Registry Services NSW and the payment of compensation, and the removal of other encroachments comprising concrete piles, slurries and a capping beam.

4. The parties sought an adjournment of the conciliation conference to permit certain works to be undertaken, consistent with an agreed work method statement.

5. While the works were being undertaken, the NSW state government announced a shut down of construction sites which necessitated the further adjournment of the matter until 2 September 2021, at which time I directed that an agreement be filed no later than 23 September 2021.

6. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 24 September 2021.

7. 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. The parties’ decision involves the Court exercising the functions under ss 16, 19(c1) of the LEC Act to resolve the dispute under the Encroachment of Buildings Act 1922 (Encroachment Act) in accordance with the parties’ agreed orders as set out in the s 34 agreement filed with the Court.

8. 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 ss 16, 19(c1), and 34 of the LEC Act.

9. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, in accordance with s 34(3) of the LEC Act, as the jurisdictional prerequisites have been satisfied as follows:

1. The Applicant has brought the proceedings in accordance with the definitions of “encroaching owner” and “owner” in s 2 of the Encroachment Act, and filed the Class 3 application in this Court in accordance with s 3 of the Encroachment Act.

2. The proceedings fall within Class 3 of the Court’s jurisdiction pursuant to s 19(c1) of the LEC Act.

3. The Court arranged a s 34 conciliation conference pursuant to s 34(1) of the LEC Act.

4. The parties have reached agreement as to the terms of an easement pursuant to s 88B of the Conveyancing Act 1919, and the payment of monies by the Applicant to the Respondent that has resolved the issues between the parties, and for in respect of which the Court also has power to make the orders under s 16(1) of the LEC Act.

10. The Court has power to make those orders as requested by the parties in accordance with s 2 after considering the issues raised in s 3 of the Encroachment Act.

11. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

Orders

12. The Court orders that:

1. The Applicant at its own costs agrees to carry out, in a proper workmanlike manner and in compliance with all applicable laws and the requirements of any relevant authorities, removal works of the remaining encroachment on Lot 1 in Deposited Plan 736285 or any subsequent lot(s) created following registration of a plan of consolidation or subdivision (as the case may be) (13 Ross Street, Forest Lodge) (Subject Site), being:

1. the removal and lawful disposal of the exposed soil for a length of 22m for a width being the area between the edge of the existing reinforced slab on ground of the Subject Site to the common boundary of the Subject Site and SP91066 (Adjoining Site), and to a depth that is 100mm below the top of the existing slab level; and

2. the removal of any remaining encroaching pile on the common boundary of the Subject Site and the Adjoining Site.

together being the ‘Remaining Encroachment’.

2. The Applicant is to provide the Respondent with evidence of the removal of the Remaining Encroachment prior to the application of any Occupation Certificate with respect to the Subject Site, or within a 12 month period from the date of these Orders, whichever is earlier. For this purpose, the Applicant further agrees that it will not assign, transfer or dispose the Subject Site or deal with its interest in the Subject Site unless and until the Applicant complies with its obligations in this Order to the satisfaction of the Respondent.

3. An easement as identified in the ‘Plan of Easement of Existing Encroachment to Remain within Lot 1 DP 736285’ drawn by Walter Ronald Johansen annexed to this agreement and marked “A” is to be registered, benefitting the Adjoining Site and burdening the Subject Site (the Easement).

4. The Respondent reserves its rights to register a caveat on the Subject Site pending registration of the Easement.

5. Within 14 days of the date of these Orders, the Respondent will do all things necessary to prepare and provide to the Applicant the final plan of easement and the instruments to create the Easement (on terms specified in Part 13 of Schedule 8 of the Conveyancing Act 1919) for review and execution.

6. Within 14 days of receipt of the documents required by Order (5), the Applicant is to provide to the Respondent:

1. Properly executed documents for registration;

2. Evidence of production of title to enable registration of the easement plan and instrument;

3. Mortagee’s consent, if applicable;

4. Tax invoice for the payment of compensation in the agreed amount of $23,000.00; and

5. Tax invoice for reimbursement of its legal costs and disbursements associated with the registration of the Easement, capped at $3,000.00 plus GST and disbursements.

7. Within 14 days of receipt of the documents required by Order (6), the Respondent shall do all things necessary to register the Easement with Land Registry Services NSW. For this purpose, the Applicant agrees to co-operate with the Respondent and do things necessary in a prompt manner to comply with any requisitions raised by Land Registry Services NSW.

8. Within 2 days of registration of the Easement, the Respondent is to pay the Applicant:

1. compensation pursuant to s 3(b) of the Encroachment of Buildings Act 1922 in the sum of $23,000 (pursuant to the tax invoice required under Order (6(d)); and

2. legal costs and disbursements associated with the registration of the Easement to be capped at $3,000.00 plus GST and disbursements (pursuant to the tax invoice required under Order (6(e)).

9. The registered proprietor of the Subject Site agrees to not take any further action, commence proceedings or seek compensation from the registered proprietor of the Adjoining Site in relation to the Remaining Encroachment.

10. The Respondent is to pay the Applicant’s costs of the proceedings as agreed or assessed.

……………………

T Horton

Commissioner of the Court

Annexure A (57183, pdf)