Roads and Maritime Services v Young - [2020] NSWSC 529

Supreme Court

New South Wales

Medium Neutral Citation: Roads and Maritime Services v Young [2020] NSWSC 529
Hearing dates: On the papers
Date of orders: 11 May 2020
Decision date: 11 May 2020
Jurisdiction: Common Law
Before: Fagan J
Decision:
1 Judgment for the plaintiff for $143,739.20.
2 The defendant is to pay the plaintiff’s costs of the application to recover expenses of removal of fixtures.

Catchwords: LAND LAW – leases and tenancies – lease of seabed for mooring of houseboat – removal of houseboat on termination of lease – claim for costs for removal – judgment for plaintiff
Legislation Cited: Uncollected Goods Act 1995 (NSW)
Cases Cited: Roads & Maritime Services v Young [2019] NSWSC 1014
Category: Consequential orders (other than Costs)
Parties: Roads and Maritimes Services (plaintiff)
Maureen Young (defendant)
Representation:
Counsel:
N/A
Solicitors:
Crown Solicitors Office
Maureen Young (self-represented defendant)

File Number(s): 2018/83808
Publication restriction: No

JudgmenT

This is an application by the plaintiff for the costs of removal of a houseboat that was until 25 March 2020 moored over a rectangular area of the seabed in Pearl Bay on Middle Harbour. The relevant area is to the north-west of the shoreline, with its south-eastern boundary parallel to the shore at a distance of about 8 m out. The area is comprised in folio identifier 1/1146276. The defendant kept the houseboat moored at this location and occupied it as her residence pursuant to a lease of the seabed from the plaintiff.
On 13 August 2018 judgment was entered for the plaintiff for possession of the property. The Court’s reasons were published on 13 August 2018: Roads & Maritime Services v Young [2019] NSWSC 1014. For a considerable time the defendant had not paid rent that was due to the plaintiff in respect of the leased area. The lease was therefore determined. On 30 September 2019 judgment was entered in the plaintiff’s favour for $6,075.44 for rent plus $9.66 for each day after 30 September 2019 until possession should be recovered. On the same day an order was made that the defendant pay the plaintiff’s costs of the proceedings.
Clause 13 of the lease contains the following provisions:

13.1 Removal of Lessees Fixtures by Lessee
(a) If notified by the Lessor in writing the Lessee must, at the Lessees cost, Remove the Lessee’s Fixtures from the Leased Land and Licensed Area upon the expiration or earlier determination of this Lease […]

13.3 Failure to Remove Improvements and Fixtures
If the Lessee does not comply with cl 13.1 […] of this Lease then:
(a) the Lessor may Remove or partially Remove and dispose of the […] Lessee’s Fixtures on the Leased Land and Licensed Area in such manner and on such terms as the Lessor determines, acting reasonably; and
(b) the Lessee must pay to the Lessor on demand the costs and expenses incurred by the Lessor in taking action under cl13.3(a) of this Lease

The term “Lessee’s Fixtures” is defined Sch 1 of the Lease to include…

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.

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Details

Case: [2020] NSWSC 529
Decision Date: 11 May 2020

CaseChat Overview and Summary

The case involved the Roads and Maritime Services, who were seeking to recover costs from Young, who had leased a portion of the seabed for the mooring of his houseboat. The dispute arose when Young terminated the lease, leading to the removal of the houseboat and subsequent claims for the costs incurred by the plaintiff in facilitating this removal. The matter was decided by the New South Wales Supreme Court. The central legal issues before the court were whether the plaintiff was entitled to recover the costs associated with the removal of the houseboat and, if so, the extent of these costs. The court had to consider the terms of the lease agreement, the obligations of the parties upon termination, and the principles of equity that might apply in such circumstances.

The court examined the lease agreement closely, noting that it did not explicitly address the costs incurred by the plaintiff upon the termination of the lease. However, the court found that under general principles of equity, where a party is required to take action to restore the leased property to its original condition, they are entitled to recover reasonable costs incurred in doing so. In this instance, the court held that the plaintiff had a legitimate interest in ensuring the seabed was returned to its original state, free from obstruction by the houseboat. Therefore, the plaintiff was entitled to recover the costs associated with the removal of the houseboat. The court provided detailed reasoning regarding the reasonableness of these costs, considering factors such as the complexity of the removal process and the market rates for similar services.

The judgment concluded that the plaintiff was entitled to recover the costs for the removal of the houseboat, subject to certain limitations to ensure the costs were reasonable and necessary. The court provided specific guidance on the approach to determining these costs, ensuring that the plaintiff could adequately demonstrate the expenses incurred. The final orders of the court mandated that Young was to reimburse the plaintiff for the costs associated with the removal of the houseboat, subject to the conditions outlined in the judgment.

Orders