Steven M Clark No 3 Pty Ltd v Noack - [2004] SASC 249

SUPREME COURT OF SOUTH AUSTRALIA
(Land and Valuation Division)
STEVEN M CLARK NO 3 PTY LTD v NOACK
Judgment of The Honourable Justice Besanko
24 August 2004
REAL PROPERTY - FENCING AND BOUNDARIES OF LAND - ENCROACHMENT OF BUILDINGS AND PARTY WALLS
REAL PROPERTY - VALUATION OF LAND - METHODS OF VALUATION
Application by the plaintiff seeking compensation by way of the unimproved capital value of an encroachment for the transfer of the area of the encroachment to the defendant - where the area of the encroachment had been used in association with the defendant's land since approximately 1921 and until recently both the plaintiff's land and the defendant's land had been held by members of the same family - whether an order for the transfer of the encroachment to the defendant should be made on condition that the defendant pay the unimproved capital value of the encroachment to the plaintiff - discussion of the discretion to order the transfer of the encroachment to the defendant without ordering that the defendant pay compensation to the plaintiff - assessment of the valuation evidence as to the unimproved capital value of the encroachment called by the plaintiff and the defendant - held that the encroachment should only be transferred to the defendant on condition that he pay compensation, being the unimproved capital value of the encroachment fixed at $23,800.
Encroachments Act 1944 ss 4, 5; Development Act 1993, referred to.
Clarke v Wilkie (1977) 17 SASR 134, discussed.
Gladwell v Steen (2000) 77 SASR 310; Bunney v State of South Australia (2000) 77 SASR 319; Carlin v Mladenovic (2002) 84 SASR 155, considered.

STEVEN M CLARK NO 3 PTY LTD v NOACK
[2004] SASC 249
Land and Valuation Division

BESANKO J This is an application under the Encroachments Act 1944 (“the Act”). The plaintiff is Steven M Clark No 3 Pty Ltd and the defendant is Mr Gerhard Noack. Mr Steven Clark is a legal practitioner and he is a director of, and a shareholder in, the plaintiff. The plaintiff appeared by counsel and the defendant appeared in person. The defendant is 88 years old and he has a difficulty with his hearing. Without objection I allowed his daughter to assist him in the presentation of his case.
Background
The plaintiff is the registered proprietor of land at 1 Adelaide Road, Gawler, being the land comprised and described in certificate of title register book volume 5601 folio 592. There are a number of structures on the plaintiff’s land. Near Adelaide Road there is a structure commonly known as the “Flower Wagon”. It is presently unoccupied but it is an existing commercial use. Set back from Adelaide Road is a former residence which is now used as offices for a legal practice. Near the western boundary of the plaintiff’s land as it is presently used is a substantial stone and wooden structure which is used as a garage. It was previously used as a dairy and then for horticultural…

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: [2004] SASC 249
Decision Date: 24 August 2004

CaseChat Overview and Summary

In the case of Steven M Clark No 3 Pty Ltd v Noack, the plaintiff sought compensation for the transfer of an encroachment area from the defendant, which had been used in association with the defendant's land since 1921. Both properties had been held by members of the same family until recently. The plaintiff requested an order for the transfer of the encroachment to the defendant, contingent upon the defendant paying the unimproved capital value of the encroachment to the plaintiff. The court had to determine whether the encroachment should be transferred to the defendant without compensation and assess the valuation evidence presented by both parties regarding the unimproved capital value of the encroachment.

The legal issues in this case involved the discretion of the court to order the transfer of the encroachment to the defendant without compensation, and the valuation of the encroachment. The court needed to consider the valuation evidence provided by the plaintiff and the defendant, and decide on the appropriate compensation for the encroachment. The court assessed the valuation evidence and fixed the unimproved capital value of the encroachment at $23,800. The court concluded that the encroachment should only be transferred to the defendant on condition that the defendant pay compensation of $23,800 to the plaintiff.

The court accepted the valuation evidence of Mr Christodoulou and fixed the unimproved capital value of the encroachment at $23,800. The court was prepared to make an order that the plaintiff convey the area of the encroachment to the defendant on the condition that the defendant pay compensation of $23,800 to the plaintiff. The court also required further submissions from the parties on whether the plaintiff should be granted an easement to repair and maintain the retaining wall, the terms of such an easement, and the question of costs and any other order. The plaintiff was required to bring in minutes of order to give effect to these conclusions.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

BESANKO J

I accept the valuation evidence of Mr Christodoulou, and I find that the unimproved capital value of the encroachment is $23,800.00.Conclusions Subject to one matter, I am prepared to make an order that the plaintiff convey the area of the encroachment to the defendant on condition that the defendant pay the plaintiff compensation which I fix at $23,800.00. The one matter is that I will hear from the parties on whether the plaintiff should be granted an easement to repair and maintain the retaining wall and the terms of any such easement. I will also hear from the parties on the question of costs and any other order. The plaintiff should bring in minutes of order which give effect to these conclusions.

Ratio Decidendi

Legal Principle Established

Established by: BESANKO J

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