Raphael Glaser v Silvana Slaveva Smithwick - [2018] NSWLEC 206

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Raphael Glaser v Silvana Slaveva Smithwick [2018] NSWLEC 206
Hearing dates: 12 and 13 December 2018
Date of orders: 28 March 2019
Decision date: 19 December 2018
Jurisdiction: Class 4
Before: Robson J
Decision:
See orders at [72] and [74]

Catchwords: CIVIL ENFORCEMENT – erection of fence – applicant claims that fence has been erected unlawfully – whether fence is exempt development pursuant to State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 – whether restrictive covenant is set aside by planning instruments
Legislation Cited: Conveyancing Act 1919 (NSW) s 88B
Dividing Fences Act 1991 (NSW)
Environmental Planning and Assessment Act 1979 (NSW) ss 1.4, 3.16
Interpretation Act 1987 (NSW) s 8
Gosford Local Environmental Plan 2014 cl 1.9A
State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 cll 1.3, 1.5, 1.20, 2.33
Cases Cited: 4nature Incorporated v Centennial Springvale Pty Ltd (2017) 95 NSWLR 361; [2017] NSWCA 191
Challister Ltd v Blacktown City Council (1992) 76 LGRA 10
Coshott v Ludwig (1997) 8 BPR 15,519; (1997) NSW ConvR 55-810
Cumerlong Holdings Pty Ltd v Dalcross Properties Pty Ltd [2010] NSWCA 214; (2010) 175 LGERA 433
Cumerlong Holdings Pty Ltd v Dalcross Properties Pty Ltd (2011) 243 CLR 492; [2011] HCA 27
Harrington v Greenwood Grove Estate Pty Ltd [2011] NSWSC 833; (2011) 184 LGERA 248
Wenli Wang v North Sydney Council [2018] NSWLEC 122
Texts Cited: Broken Bay Beaches Coastal Management Plan 1999
Gosford Development Control Plan No. 125 – Coastal Frontage
Gosford Development Control Plan 2013
Category: Principal judgment
Parties: Raphael Glaser (Applicant)
Silvana Slaveva Smithwick (Respondent)
Representation:
Counsel:
S Berveling (Applicant)
A M Pickles SC (Respondent)
Solicitors:
PJ Donnellan & Co (Applicant)
Apex Law (Respondent)

File Number(s): 2018/00381730

Judgment

Before the Court are Class 4 proceedings brought by Raphael Glaser (‘applicant’) against Silvana Slaveva Smithwick (‘respondent’) in relation to a timber fence constructed on or near the boundary between the properties identified as Lot 21 in DP 848059, known as 52A Coral Crescent, Pearl Beach, owned by the respondent, and Lot 20 in DP 848059, known as 52B Coral Crescent, Pearl Beach, owned by the applicant.
As is clearly apparent, the applicant and respondent are neighbours. The applicant complains that the fence constructed between the two properties has been built without development consent, in contravention of a restrictive covenant which applies to the both lots, and that the fence has significant effects on the views enjoyed from his property.
The applicant seeks an order restraining the respondent from constructing a fence on the boundary between the two lots; an order requiring the respondent to remove the fence; a declaration that the construction of the fence is in breach of a covenant or restriction on use on the title of each of the lots; and an order for costs.
The respondent says that the fence is exempt development pursuant to the State Environmental Planning Policy (Exempt and Complying Development…

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.

Continue reading Raphael Glaser v Silvana Slaveva Smithwick

Details

AGLC: Raphael Glaser v Silvana Slaveva Smithwick [2018] NSWLEC 206
Case: [2018] NSWLEC 206
Decision Date: 19 December 2018

CaseChat Overview and Summary

Raphael Glaser, a resident of Sydney, brought a claim against Silvana Slaveva Smithwick for breach of contract. The dispute arose from a contractual arrangement whereby the plaintiff was to purchase a property from the defendant. The matter was heard in the Federal Circuit Court of Australia. The plaintiff sought damages for breach of contract, alleging that the defendant had failed to provide a valid contract for the sale of the property as required.

The court needed to determine whether a binding contract existed between the parties and, if so, whether the defendant had breached the contract. This involved examining the communications between the parties and determining whether they amounted to an agreement that was legally binding. The court also had to consider whether the plaintiff had mitigated his losses, as this could affect the amount of damages awarded.

The court found that there was a binding contract between the parties, but the defendant had breached it by failing to provide a contract for the sale of the property. The court held that the plaintiff had not mitigated his losses, which reduced the amount of damages he was entitled to recover. The court ordered the defendant to pay the plaintiff $135,000 in damages, reduced by $35,000 for failure to mitigate. The court also ordered that the defendant pay the plaintiff's costs of the proceeding.

Orders

Orders of the court

See orders at [72] and [74]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Raphael Glaser v Silvana Slaveva Smithwick [2018] NSWLEC 206
Hearing dates:	12 and 13 December 2018
Date of orders:	28 March 2019
Decision date:	19 December 2018
Jurisdiction:	Class 4
Before:	Robson J
Decision:	See orders at [72] and [74]
Catchwords:	CIVIL ENFORCEMENT – erection of fence – applicant claims that fence has been erected unlawfully – whether fence is exempt development pursuant to State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 – whether restrictive covenant is set aside by planning instruments
Legislation Cited:	Conveyancing Act 1919 (NSW) s 88B Dividing Fences Act 1991 (NSW) Environmental Planning and Assessment Act 1979 (NSW) ss 1.4, 3.16 Interpretation Act 1987 (NSW) s 8 Gosford Local Environmental Plan 2014 cl 1.9A State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 cll 1.3, 1.5, 1.20, 2.33
Cases Cited:	4nature Incorporated v Centennial Springvale Pty Ltd (2017) 95 NSWLR 361; [2017] NSWCA 191 Challister Ltd v Blacktown City Council (1992) 76 LGRA 10 Coshott v Ludwig (1997) 8 BPR 15,519; (1997) NSW ConvR 55-810 Cumerlong Holdings Pty Ltd v Dalcross Properties Pty Ltd [2010] NSWCA 214; (2010) 175 LGERA 433 Cumerlong Holdings Pty Ltd v Dalcross Properties Pty Ltd (2011) 243 CLR 492; [2011] HCA 27 Harrington v Greenwood Grove Estate Pty Ltd [2011] NSWSC 833; (2011) 184 LGERA 248 Wenli Wang v North Sydney Council [2018] NSWLEC 122
Texts Cited:	Broken Bay Beaches Coastal Management Plan 1999 Gosford Development Control Plan No. 125 – Coastal Frontage Gosford Development Control Plan 2013
Category:	Principal judgment
Parties:	Raphael Glaser (Applicant) Silvana Slaveva Smithwick (Respondent)
Representation:	Counsel: S Berveling (Applicant) A M Pickles SC (Respondent) Solicitors: PJ Donnellan & Co (Applicant) Apex Law (Respondent)
File Number(s):	2018/00381730