Quinn v Stevens

[2021] NSWLEC 1361

Land and Environment Court

New South Wales

Medium Neutral Citation:

Quinn v Stevens [2021] NSWLEC 1361

Hearing dates:

Conciliation conference on 11 June 2021

Date of orders:

2 July 2021

Decision date:

02 July 2021

Jurisdiction:

Class 3

Before:

Dixon SC

Decision:

The Court orders that:

(1) As soon as practicable, the applicant is to arrange for and pay all costs incurred up to the amount of $7,000 in relation to the preparation of a Request, the accompanying plan of the site of the easement and attend to all matters and things necessary to register the vertical extension of the cross-easement for support of the common party wall (the Easement) the subject of the proceedings with Land Registry Services NSW (LRS). The respondent is to be furnished with such documents for their prior approval, which shall not be unreasonably withheld or delayed. The costs shall include the cost of obtaining any necessary consent of the respondent’s registered mortgagee to the Easement.

(2) Each party will do all acts and things as are reasonably necessary to achieve registration of the Easement including but not limited to providing the necessary consents in any PEXA workspace which is required to effect registration, agreeing to the Registrar General amending the Easement as required by the Registrar General and/or the production of the relevant certificates of title at LRS and consenting to the execution of the Request by David Patrick Baxter, as solicitor authorised by the parties.

(3) The applicant is to pay the respondent $13,000.00 within 14 days of receipt from LRS of a Registration Notice in respect of the Easement.

(4) All claims in the proceedings are otherwise dismissed with each party to pay their own costs.

Catchwords:

ENCROACHMENT OF BUILDINGS – vertical extension of cross-easement for support of the common party wall – conciliation conference – agreement between the parties – orders

Legislation Cited:

Conveyancing Act 1919, s 88B

Encroachment of Buildings Act 1922, ss 2, 3

Land and Environment Court Act 1979, ss 16, 19, 33, 34

Category:

Principal judgment

Parties:

Danielle Simone Quinn (Applicant)
James Walter Monckton Stevens (Respondent)

Representation:

Counsel:
D Baxter (Solicitor) (Applicant)
A Whealy (Solicitor) (Respondent)

Solicitors:
Pikes & Verekers Lawyers (Applicant)
Mills Oakley (Respondent)

File Number(s):

2021/120926

Publication restriction:

Nil

Judgment

1. COMMISSIONER: These Class 3 proceedings were brought by the applicant, Ms Danielle Quinn, against her neighbour, Mr James Stevens, the respondent, primarily seeking relief under the Encroachment of Buildings Act 1922 (Encroachment Act) in relation to a common party wall situated between lands owned by the applicant and respondent and legally described as Lot 1 in DP 913691 (also known as 12 Bishopgate Street, Camperdown) and Lot 2 in DP 913691 (also known as 14 Bishopgate Street, Camperdown), respectively.

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 11 June 2021. I presided over the conciliation conference.

3. After 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 involved 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.

4. 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 Act in accordance with the parties’ agreed orders as set out in the s34 agreement filed with the Court.

Jurisdictional prerequisites

5. 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), 33(1), 34(3), 34(7) and 34(8) of the LEC Act.

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

1. The applicant brought the proceedings in accordance with the definitions of “encroaching owner” and “owner” in s 2(a), and filed their Class 3 application in this Court pursuant to s 3(1)(a)-(f) 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 reached agreement for the grant of an easement pursuant to s 88B of the Conveyancing Act 1919 and payment of monies. The grant of the easement and the payment of monies by the applicant to the respondent resolved the issues between the parties.

7. 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. The s88B instrument for the creation of the easement giving the respondent a legal right to encroach upon the applicant’s land is created and registered pursuant to s 88B of the Conveyancing Act 1919. The Court also has power to make the orders in accordance with s 16(1) of the LEC Act.

8. 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.

9. The Court orders that:

1. As soon as practicable, the applicant is to arrange for and pay all costs incurred up to the amount of $7,000 in relation to the preparation of a Request, the accompanying plan of the site of the easement and attend to all matters and things necessary to register the vertical extension of the cross-easement for support of the common party wall (the Easement) the subject of the proceedings with Land Registry Services NSW (LRS). The respondent is to be furnished with such documents for their prior approval, which shall not be unreasonably withheld or delayed. The costs shall include the cost of obtaining any necessary consent of the respondent’s registered mortgagee to the Easement.

2. Each party will do all acts and things as are reasonably necessary to achieve registration of the Easement including but not limited to providing the necessary consents in any PEXA workspace which is required to effect registration, agreeing to the Registrar General amending the Easement as required by the Registrar General and/or the production of the relevant certificates of title at LRS and consenting to the execution of the Request by David Patrick Baxter, as solicitor authorised by the parties.

3. The applicant is to pay the respondent $13,000.00 within 14 days of receipt from LRS of a Registration Notice in respect of the Easement.

4. All claims in the proceedings are otherwise dismissed with each party to pay their own costs.

………………………….

S Dixon

Senior Commissioner of the Court

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