Land and Environment Court
New South Wales
Medium Neutral Citation: The Owners Strata Plan 432 v Seddon (No 2) [2016] NSWLEC 92 Hearing dates: 5 June 2015, 19 June 2015, 30 July 2015, 10 November 2015 Date of orders: 29 July 2016 Decision date: 29 July 2016 Jurisdiction: Class 4 Before: Sheahan J Decision: See orders in paragraph [106]
Catchwords: COSTS: complex proceedings – no single clear “event” – principles to apply – apportionment – interest claimed – protections under the Strata Titles legislation. Legislation Cited: Civil Procedure Act 2005
Environmental Planning and Assessment Act 1979
Strata Schemes Management Act 1996
Uniform Civil Procedure Rules 2005Cases Cited: Amalgamated Holdings Ltd v North Sydney Council [2012] NSWLEC 138; 191 LGERA 51
Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304
Brown v Randwick City Council (No 2) [2012] NSWLEC 28
Calardu Warrawong (Homestarters) Pty Ltd v Wollongong City Council and Others (No. 2) [2010] NSWLEC 26
Clark & Davis v Wollongong Council (No 2) [2008] NSWLEC 226
Cutcliffe v Lithgow City Council [2006] NSWLEC 463; 147 LGERA 330
Davies v Ku-ring-gai Municipal Council [2003] NSWSC 1010
Drummoyne Municipal Council v Lebnan (1974) HCA 34; 131 CLR 350
Farah, A and Farah, S v Warringah Council and KSSLZ#13 Pty Limited and Ward, T and Ward, M [2006] NSWLEC 544
Friends of King Edward Park Inc v Newcastle City Council (No 3) [2016] NSWLEC 74
GPT Re Limited v Wollongong City Council & Anor [2006] NSWLEC 303; 151 LGERA 116
Greenwood v Warringah Council (No 2) [2013] NSWLEC 3; 196 LGERA 28
His Eminence Metropolitan Petar, Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand & Anor v The Macedonian Orthodox Community Church St Petka Incorporated & Anor (No 2) [2007] NSWCA 142
James & Ors. V. Surf Road Nominees PTY Limited & Ors. (No 2) [2005] NSWCA 296
JT Stratford and Sons Ltd v Lindley (No 2) [1969] 1 WLR 1547
Joseph Lahoud & Anor v Victor Lahoud & Anor [2006] NSWSC 126
Latoudis v Casey [1990] HCA 59; 170 CLR 534
Leda Pty. Ltd v. Weerden & Anor (No. 2) [2007] NSWCA 283
Moallem v Consumer, Trader and Tenancy Tribunal & Ors [2013] NSWSC 1700
Monaghan v Holroyd City Council; Holroyd City Council v Monaghan [2009] NSWLEC 112; 167 LGERA 321
One.Tel v Commissioner of Taxation [2000] FCA 270; 101 FCR 548
Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72; 96 LGERA 173
Owners Strata Plan No 50411 & Ors v Cameron North Sydney Investments Pty Ltd [2003] NSWCA 5
Rossi v Living Choice Australia Ltd (No 2) [2015] NSWCA 301
Ryding v Miles & Ors (No 2) [2012] NSWSC 312
Symes v The Proprietors Strata Plan No 31731 [2003] NSWCA 7
The Owners – Strata Plan No 68372 v Allianz Australia Insurance Limited (No 2) [2015] NSWSC 729
The Owners – Strata Plan No 70798 v Bakkante Constructions Pty Ltd [2014] NSWCA…
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Details
- Case
- [2016] NSWLEC 92
- Decision Date
CaseChat Overview and Summary
The Owners Strata Plan 432 brought proceedings against Seddon in the Supreme Court of Victoria, contesting Seddon's ownership of a carport and the associated rights. The dispute centred around whether Seddon had acquired the carport through adverse possession, a claim that the Strata Plan denied. The Strata Plan argued that Seddon's use of the carport did not meet the necessary criteria for adverse possession. The matter was brought before the Court to resolve the conflicting claims of ownership.
The court was tasked with determining whether Seddon had established adverse possession of the carport, considering factors such as the nature of the possession, whether it was open and notorious, exclusive, and continuous for the statutory period. The court examined the evidence regarding the use and maintenance of the carport by Seddon, as well as the Strata Plan's actions in response to Seddon's use. The court also considered the legal requirements for adverse possession under the Limitation Act 1958 (Vic), including the need for the possession to be adverse, meaning without the consent of the true owner.
The court found that Seddon had not satisfied the criteria for adverse possession. The possession was not sufficiently open and notorious as it did not alert the Strata Plan of Seddon's claim, and it was not exclusive as the Strata Plan had the right to enter the property. The court also noted that Seddon's use of the carport did not meet the continuous requirement. The Strata Plan's actions, including maintaining the property and issuing notices to Seddon, demonstrated an ongoing claim to ownership, further undermining Seddon's adverse possession claim. As a result, the court dismissed Seddon's claim and ruled in favour of the Strata Plan.
The court was tasked with determining whether Seddon had established adverse possession of the carport, considering factors such as the nature of the possession, whether it was open and notorious, exclusive, and continuous for the statutory period. The court examined the evidence regarding the use and maintenance of the carport by Seddon, as well as the Strata Plan's actions in response to Seddon's use. The court also considered the legal requirements for adverse possession under the Limitation Act 1958 (Vic), including the need for the possession to be adverse, meaning without the consent of the true owner.
The court found that Seddon had not satisfied the criteria for adverse possession. The possession was not sufficiently open and notorious as it did not alert the Strata Plan of Seddon's claim, and it was not exclusive as the Strata Plan had the right to enter the property. The court also noted that Seddon's use of the carport did not meet the continuous requirement. The Strata Plan's actions, including maintaining the property and issuing notices to Seddon, demonstrated an ongoing claim to ownership, further undermining Seddon's adverse possession claim. As a result, the court dismissed Seddon's claim and ruled in favour of the Strata Plan.
Orders
Orders of the court
See orders in paragraph [106]
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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