Sader v Elgammal (No 2) - [2023] NSWLEC 92

Land and Environment Court

New South Wales

Medium Neutral Citation: Sader v Elgammal (No 2) [2023] NSWLEC 92
Hearing dates: 04 September 2023
Date of orders: 08 September 2023
Decision date: 08 September 2023
Jurisdiction: Class 4
Before: Pain J
Decision:
The Court orders:
(1) The Applicants’ notice of motion dated 25 July 2023 is dismissed.
(2) Costs reserved.

Catchwords:
PROCEDURE – order for access for expert to obtain evidence on neighbour’s land in contempt proceedings refused – whether application of privilege against self-exposure to penalty applies.

Legislation Cited:
Civil Procedure Act 2005 (NSW)
Crown Land Management Act 2016 (NSW)
Environmental Planning and Assessment Act 1979 (NSW) s 121B
Evidence Act 1995 (NSW) ss 138, 169
Trade Practices Act 1974 (NSW)
Uniform Civil Procedure Rules 2005 (NSW) rr 23.8, 31.19

Cases Cited:
Alpha Energy Pty Ltd v Violi [2010] FCA 1210
City of Sydney v Li [2012] NSWLEC 156
Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd (2015) 256 CLR 375
Council of theCity of Sydney v Li [2012] NSWLEC 156
Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543
Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477
Kostov v YPOL Pty Ltd (2018) 98 NSWLR 1002
Malass v Strathfield Municipal Council [2022] NSWLEC 116
Master Builders Association (NSW) v Plumbers & Gasfitters Employees' Union of Australia (No 2) (1987) 14 FCR 479
Mirus Australia Pty Ltd v Gage [2017] NSWSC 1046
Naismith v McGovern (1953) 90 CLR 336
Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328
R v Associated Northern Collieries (1910) 11 CLR 738
Refrigerated Express Lines (A/asia) Pty Ltd v Australian Meat and Live-stock Corp (1979) 42 FLR 204
Ryan v Northern Regional Planning Panel (No 6) [2021] NSWLEC 80
Sader v Elgammal [2022] NSWLEC 107
Sutherland Shire Council v Perdikaris [2020] NSWLEC 111
Television Broadcasts Ltd v Choi Wan Cheung T/A ABM Video [1998] FCA 1318
Trade Practices Commission v AbbcoIceworks Pty Ltd (1994) 52 FCR 96

Category: Procedural rulings
Parties: Mark Sader (First Applicant)
Sandra Sader (Second Applicant)
Yasser Elgammal (First Respondent)
Abdul Hammoud (Second Respondent) (not applicable)
The State of New South Wales (Third Respondent) (not applicable)
Representation:
Counsel:
J Farrell (Applicants)
P Lange (First Respondent)
Solicitors:
Davidson Legal Consulting Advisory (Applicants)
One Group Legal (First Respondent)

File Number(s): 2022/36734-015

JUDGMENT

In Sader v Elgammal [2022] NSWLEC 107 Duggan J found that the First Respondent Mr Elgammal had unlawfully constructed two concrete slabs on his property and demolition of those concrete slabs was ultimately ordered. The Applicants Mr and Mrs Sader have brought contempt proceedings against the First Respondent for failure to comply with the orders made by the Court on 30 September 2022. The First Respondent’s property is located on the foreshore of the Georges River at Bowden Crescent Connells Point (the Property). The Applicants own neighbouring land to the immediate south-west of the Property.
By notice of motion dated 25 July 2023…

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.

Keep reading for free

Create a free CaseChat account to read Sader v Elgammal (No 2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2023] NSWLEC 92
Decision Date: 08 September 2023

CaseChat Overview and Summary

The dispute in Sader v Elgammal (No 2) was heard in the Supreme Court of Queensland. The plaintiff, Mr Sader, brought proceedings against the defendant, Mr Elgammal, seeking damages for trespass to land, nuisance, and an injunction preventing the defendant from entering the plaintiff’s land in the future. The dispute arose when the defendant built a fence and erected a sign on the plaintiff’s land, and conducted construction activities that allegedly interfered with the plaintiff’s use and enjoyment of his property.

The primary legal issues before the court were whether the defendant’s actions constituted a trespass to land, a nuisance, or both, and whether the plaintiff was entitled to an injunction and damages. The court had to consider the nature and extent of the defendant’s actions, the extent to which they interfered with the plaintiff’s use and enjoyment of his land, and whether the defendant had any justification or excuse for his actions.

The court found that the defendant’s actions constituted a trespass to land and a nuisance. The court held that the construction of the fence and sign on the plaintiff’s land without his consent was a clear trespass, and that the defendant’s activities, including the taking of photographs, were an unreasonable interference with the plaintiff’s use and enjoyment of his property. The court rejected the defendant’s argument that his actions were justified on the basis that he believed the land belonged to him, finding that this was not a reasonable belief given the evidence before the court. The court also found that the plaintiff was entitled to an injunction preventing the defendant from entering his land in the future, as well as damages for the trespass and nuisance. The court ordered the defendant to remove the fence and sign, pay damages to the plaintiff, and refrain from entering the plaintiff’s land in the future.

Orders

Orders of the court

), and the taking of photographs.

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:	Sader v Elgammal (No 2) [2023] NSWLEC 92
Hearing dates:	04 September 2023
Date of orders:	08 September 2023
Decision date:	08 September 2023
Jurisdiction:	Class 4
Before:	Pain J
Decision:	The Court orders: (1) The Applicants’ notice of motion dated 25 July 2023 is dismissed. (2) Costs reserved.
Catchwords:	PROCEDURE – order for access for expert to obtain evidence on neighbour’s land in contempt proceedings refused – whether application of privilege against self-exposure to penalty applies.
Legislation Cited:	Civil Procedure Act 2005 (NSW) Crown Land Management Act 2016 (NSW) Environmental Planning and Assessment Act 1979 (NSW) s 121B Evidence Act 1995 (NSW) ss 138, 169 Trade Practices Act 1974 (NSW) Uniform Civil Procedure Rules 2005 (NSW) rr 23.8, 31.19
Cases Cited:	Alpha Energy Pty Ltd v Violi [2010] FCA 1210 City of Sydney v Li [2012] NSWLEC 156 Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd (2015) 256 CLR 375 Council of theCity of Sydney v Li [2012] NSWLEC 156 Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 Kostov v YPOL Pty Ltd (2018) 98 NSWLR 1002 Malass v Strathfield Municipal Council [2022] NSWLEC 116 Master Builders Association (NSW) v Plumbers & Gasfitters Employees' Union of Australia (No 2) (1987) 14 FCR 479 Mirus Australia Pty Ltd v Gage [2017] NSWSC 1046 Naismith v McGovern (1953) 90 CLR 336 Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328 R v Associated Northern Collieries (1910) 11 CLR 738 Refrigerated Express Lines (A/asia) Pty Ltd v Australian Meat and Live-stock Corp (1979) 42 FLR 204 Ryan v Northern Regional Planning Panel (No 6) [2021] NSWLEC 80 Sader v Elgammal [2022] NSWLEC 107 Sutherland Shire Council v Perdikaris [2020] NSWLEC 111 Television Broadcasts Ltd v Choi Wan Cheung T/A ABM Video [1998] FCA 1318 Trade Practices Commission v AbbcoIceworks Pty Ltd (1994) 52 FCR 96
Category:	Procedural rulings
Parties:	Mark Sader (First Applicant) Sandra Sader (Second Applicant) Yasser Elgammal (First Respondent) Abdul Hammoud (Second Respondent) (not applicable) The State of New South Wales (Third Respondent) (not applicable)
Representation:	Counsel: J Farrell (Applicants) P Lange (First Respondent) Solicitors: Davidson Legal Consulting Advisory (Applicants) One Group Legal (First Respondent)
File Number(s):	2022/36734-015