Registrar General v Sutherland - [2000] NSWLEC 202

Land and Environment Court

of New South Wales

CITATION: Registrar General v Sutherland & Ors [2000] NSWLEC 202

PARTIES:
APPLICANT
Registrar General
RESPONDENT
Sutherland & Ors

FILE NUMBER(S): 30226 of 1999

CORAM: Cowdroy J

KEY ISSUES: Costs :- indemnity costs - Registrar General making determination of inconclusive boundary - determination including provision of easements as essential component of just and reasonable determination - power of Registrar General to require easements as part of determination - landowner claiming that the determination would extinguish compensation claim pursuant to Encroachment of Buildings Act 1922 - no unreasonable conduct by Registrar General - claim for indemnity costs refused.

LEGISLATION CITED: Encroachment of Buildings Act 1922
Land and Environment Court Act 1979 s 69(2)
Real Property Act 1900 s 135B, s 135H, s 135J

CASES CITED: Port Stephens Council v Randell [2000] NSWLEC 169 ;
Ray Group Pty Ltd v Byron Shire Council (1998) 98 LGERA 378;
Registrar General v Malcolm William Rigby and Leanette June Rigby & Anor (NSWLEC no 30339 of 1994, unreported) ;
The Registrar General v Tuckfield (1981) 6 BPR 13,831

DATES OF HEARING: 16/8/00, 17/8/00, 18/8/00

DATE OF JUDGMENT:
09/21/2000

LEGAL REPRESENTATIVES:

APPLICANT
Mr I Wales SC
SOLICITORS
Kenneth Charles Hall
Solicitor for the Registrar General
RESPONDENT
Mr M Baker (Solicitor)
SOLICITORS
Velik Solicitors

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES MATTER No. 30226 of 1999
CORAM: Cowdroy J
DECISION DATE: 21/9/00

Registrar General

Applicant

Robert William Sutherland and Juanita Faye Sutherland

First Respondent

David Lindsay Elsworth

Second Respondent

Michael Robin Bowden and Nancy Soh Kin Bowden

Third Respondent

JUDGMENT

1. By notice of motion filed on 11 July 2000 Robert William Sutherland and Juanita Faye Sutherland (“the Sutherlands”) seek an order that the Registrar General pay their costs of these proceedings on an indemnity basis pursuant to the provisions of s 69(2) of the Land and Environment Court Act 1979 (“the Court Act”).

History of litigation

2. The Sutherlands became the registered proprietors of land known as 64 Cowan Drive, Cottage Point (“no 64”) on 17 April 1998. The second respondent, Mr Elsworth owned the adjoining property located on the western side known as no 66 Cowan Drive (“no 66”). The third respondent, Mr and Mrs Bowden owned land adjacent to no 64 on the eastern side thereof, known as no 62 Cowan Drive (“no 62”).

3. At the date of acquisition of no 64 by the Sutherlands there were encroachments upon such land from both no 62 and no 66. On 11 August 1998 the Sutherlands commenced proceedings in this Court against Mr and Mrs Bowden seeking removal of an encroachment or alternatively compensation pursuant to the provisions of the Encroachment of Buildings Act 1922 (NSW). No proceedings were instituted against Mr Elsworth.

4. Following survey investigation the Sutherlands made application to Warringah Shire Council to erect a dwelling on no 64 and such approval was granted on the 11 February 1999 subject to a confirmation of the boundary being made…

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 Registrar General v Sutherland

Details

AGLC: Registrar General v Sutherland [2000] NSWLEC 202
Case: [2000] NSWLEC 202
Decision Date: 09/21/2000

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, the Registrar General was involved in a boundary dispute between Robert William Sutherland and Juanita Faye Sutherland (the Sutherlands) and several adjoining landowners. The Registrar General made a determination regarding the boundaries, which included the creation of easements as an essential component of the just and reasonable determination. The Sutherlands contested the inclusion of easements and sought indemnity costs, arguing that the Registrar General's refusal to acknowledge that he lacked the power to require easements led to unnecessary proceedings and costs.

The court was required to decide whether the Registrar General's conduct warranted the awarding of indemnity costs, and whether the Registrar General had the power to require easements as part of the determination. The court examined the statutory provisions and previous case law to determine the Registrar General's authority and the appropriateness of awarding indemnity costs.

The court found that although the Registrar General had no power to require the grant of easements, the determination itself did not create easements but merely recommended their inclusion as a just and reasonable solution. The court accepted that the Registrar General's determination was made in good faith and was the only practical solution to resolve the inconclusive boundaries. The insistence by the Sutherlands that the Registrar General acknowledge he had no power to compel the creation of easements was considered misconceived. The court also held that the Registrar General's conduct did not warrant the awarding of indemnity costs, as there was no evidence of lack of bona fides, lack of diligence, or other cogent reasons that would render the court's discretion to miscarry if it did not order the Registrar General to pay the costs.

The court ordered that the notice of motion of the Sutherlands be dismissed and that the exhibits be returned. No order for the costs of the proceedings was made.

Orders