Van Beek v Lou

[2025] NSWLEC 21

Land and Environment Court

New South Wales

Medium Neutral Citation:

Van Beek v Lou [2025] NSWLEC 21

Hearing dates:

18 March 2025

Date of orders:

18 March 2025

Decision date:

19 March 2025

Jurisdiction:

Class 3

Before:

Pepper J

Decision:

Notice of motion dismissed with costs of the motion being costs in the cause. Consequential timetabling orders made.

Catchwords:

PROCEDURE: application to transfer proceedings to the Supreme Court of New South Wales from the Land and Environment Court – legal principles – no reason to transfer proceedings – Land and Environment Court has jurisdiction to hear the matter – Land and Environment Court has power to grant the relief sought – Land and Environment Court, as a specialist environment and planning court, best placed to determine the issues raised by the proceedings – transfer would be inefficient and unjust to the applicants given that a final hearing date has been allocated and the applicants have filed and served all of their evidence.

PROCEDURE: application for a stay of proceedings pending transfer to the Supreme Court of New South Wales – legal principles – stay not warranted.

Legislation Cited:

Civil Procedure Act 2005, ss 56, 149B

Encroachment of Buildings Act 1922, ss 2, 3, 10

Land and Environment Court Act 1979, ss 3, 16, 22

Real Property Act 1900, ss 28R, 28V, 135J

Cases Cited:

Arcadia Investment Holdings Pty Ltd v Environment Protection Authority [2022] NSWLEC 2

CVA Apartments Pty Ltd v Burwood Council; Marsden Hotel Burwood Pty Ltd v Burwood Council; The Marsden Hotel Pty Ltd v Burwood Council [2020] NSWLEC 11

J K Williams Staff Pty Ltd v Sydney Water Corp [2020] NSWSC 220

Misan v Markham Real Estate Partners (KSW) Pty Ltd [2022] NSWCA 154

Pierce v Minister Administering the Water Management Act 2000 [2012] NSWLEC 33

The Owners of Strata Plan 78825 v Northern Beaches Council [2024] NSWLEC 12

Young v King [2016] NSWCA 282

Category:

Procedural rulings

Parties:

Nicholas Van Beek (First Applicant)
Diana Van Beek (Second Applicant)

Olivia Lou (First Respondent)
Yi Kun Lou (Second Respondent)

Representation:

Counsel:
H Robilliard (solicitor) (Applicants)
Y Lou (Respondents)

Solicitors:
Finn Roache Lawyers (Applicants)
N/A (Respondents)

File Number(s):

2024/283555

Publication restriction:

Nil

JUDGMENT

The Respondent in Class 3 Encroachment Proceedings Seeks to Transfer the Proceedings to the Supreme Court

1. The respondents, Olivia Lou and Yi Kun Lou (“the Lous”), to Class 3 proceedings commenced in the Court by the applicants, Nicholas Van Beek and Diana Van Beek (the “Van Beeks”), on 2 August 2024, seek by way of notice of motion to transfer the proceedings to the Supreme Court of New South Wales (“Supreme Court”).

2. The Lous also seek a stay of proceedings pending the transfer.

3. At the conclusion of the hearing of the motion I dismissed the application and made consequential orders, with the promise of written reasons to follow. These are those reasons.

The Van Beeks Allege that the Lous Have Encroached Upon Their Property

4. The Class 3 application seeks the following relief:

1.    A declaration that the respondents wall at 16 Short Street, Forest Lodge, NSW 2037 encroaches into the applicant’s land, 12 Short Street, Forest Lodge, NSW 2037.

2. The Respondents pay the Applicants compensation in the sum of $57,567.00 in accordance with section 4(1) of the Encroachment of Buildings Act 1922.

3.    In the alternative, an order that the respondent is to remove the encroaching wall insofar as it encroaches into the Applicant’s land and make good the Applicant’s land to the condition it was in prior to the erection of the encroaching wall.

4.    Such further or other orders as the Court sees fit.

5.    Costs.

5. It appears from the Statement of Facts and Contentions that the Van Beeks and the Lous own adjacent land sharing a contiguous boundary. The Lous undertook alteration works as owner-builders to their residential property in around 2003 or 2004. It is alleged that as part of these works the Lous erected a solid wall without eaves which projects over the boundary of the Van Beeks’s land by approximately 1.7 m². As a consequence, the Van Beeks seek compensation for loss and damage in the sum of $57,567.00, or alternatively, that the wall be removed insofar as it encroaches upon their land.

6. On 29 November 2024 the Court set the matter down for final hearing on 30 April 2025 and made orders for the filing and serving of evidence by the parties.

7. The Van Beeks have filed and served their evidence. The Lous have not, in breach of court orders.

The Lous’s Reasons for Seeking to Transfer the Proceedings

8. The Lous, who were self-represented, submitted that the proceedings should be transferred to the Supreme Court because of their complexity. That is, in addition to the encroachment issue referred to above, the proceedings also raised an easement dispute, the infringement of their common law property rights, and a boundary determination issue.

9. It should be noted that only the encroachment issue is presently before the Court, as detailed in the Class 3 application and the accompanying Statement of Facts and Contentions. There is, for example, no boundary determination application that has been lodged by the Lous. By way of “Points of Defence” to the claim filed by the Lous on 24 October 2024, the Lous merely rely upon the fact that the impugned works were carried out over two decades ago.

Legal Principles to be Applied in the Transfer of Proceedings to the Supreme Court

10. The Court may transfer proceedings to the Supreme Court pursuant to s 149B of the Civil Procedure Act 2005 (“CPA”) if it is satisfied that it is more appropriate for the proceedings to be heard in the Supreme Court.

11. Section 149B of the CPA states as follows:

(1)   If either the Supreme Court or the Land and Environment Court is satisfied, in relation to proceedings before it, that it is more appropriate for the proceedings to be heard in the other court, it may, on application by a party to the proceedings or of its own motion, order that the proceedings be transferred to the other court.

(2)     If either the Supreme Court or the Land and Environment Court is satisfied, in relation to proceedings before it, that—

(a)     there are related proceedings pending in the other court, and

(b)     it is more appropriate for the proceedings to be heard, together with the related proceedings, in the other court,

it may, on application by a party to the proceedings or of its own motion, order that the proceedings be transferred to the other court and heard together with the related proceedings.

(3)     No appeal lies against a decision of the transferor court to make, or not to make, an order under this section.

12. In The Owners of Strata Plan 78825 v Northern Beaches Council [2024] NSWLEC 12, Pain J opined that (at [45] and [46]):

45 The decision to transfer proceedings to the Supreme Court is discretionary, based on a consideration under s 149B(1) of whether it is more appropriate for a proceeding to be heard in that court. Under s 149E of the CP Act the jurisdiction of the transferor court in relation to the proceedings is vested in the transferee court. The discretion is wide in that no specific statutory considerations are specified in the CP Act in determining whether a transfer should occur, mindful always of the overriding consideration in s 56 of the CP Act of facilitating the just, quick and cheap resolution of matters before a court.

46 On balance I consider a transfer is not appropriate. The Class 2 Application responds to an order issued by the Council under the LG Act because of unsafe conditions on the Applicant’s land. The Court is conferred with express jurisdiction to determine such matters in a merits assessment context where the rules of evidence do not apply. A judge, or a commissioner with appropriate expertise, of the Court may be listed to hear the matter. The Court has procedures in place to enable the prompt consideration of such matters, such as the conciliation process under s 34 of the LEC Act. A conciliation conference between the parties has been set down in April 2024.

13. The observation made at [45] by her Honour is undoubtedly correct. Having said this, the courts have nevertheless sought to identify some factors to which regard may be had in exercising the discretion afforded under s 149B of the CPA to transfer proceedings. In J K Williams Staff Pty Ltd v Sydney Water Corp [2020] NSWSC 220 Robb J observed that there is “limited guidance in the case law as to when it will be ‘more appropriate’ for proceedings to be heard in another court for the purposes of s 149B(2) of the CPA” (at [51]). But his Honour nevertheless referred to and applied the factors set out by this Court in Pierce v Minister Administering the Water Management Act 2000 [2012] NSWLEC 33 (at [53]).

14. In Pierce the Court articulated the following principles (at [37]):

37 Logically, and having regard to the overriding purpose contained in s 56 of the CPA (as informed by ss 57-60 of that Act), the following factors are likely to be relevant, but few will be wholly determinative:

(a)    whether an issue concerning the jurisdiction of either court to hear and dispose of the proceedings exists;

(b)    whether either court has the power to grant the relief sought;

(c)    whether one court is better placed to determine the issues raised by the proceedings, having regard to each court's expertise and skill;

(d)    whether the transfer will result in a saving of time and costs to the parties;

(e)    whether the transfer will result in a more efficient allocation of judicial resources; and

(f)    whether in all the circumstances the transfer is just.

15. At least two of these factors were identified by Basten JA in Young v King [2016] NSWCA 282, namely, the nature of the proceedings and the relief sought (at [15]).

The Proceedings Ought Not be Transferred

16. Having regard to the principles set out above, I declined to exercise my discretion to transfer the proceeding to the Supreme Court. I did so because, first, while the Supreme Court undoubtedly has jurisdiction to hear and determine the subject-matter of the Class 3 proceedings as presently constituted (see s 10 of the Encroachment of Buildings Act 1922 (“the Act”)), this Court has been expressly and intentionally vested with exclusive jurisdiction to entertain the claim pursuant to s 3 of the Act. That provision relevantly states as follows:

(1)     Either an adjacent owner or an encroaching owner may apply to the Court for relief under this Act in respect of any encroachment.

(2)     On the application the Court may make such orders as it may deem just with respect to:

(a)   the payment of compensation to the adjacent owner,

(b)     the conveyance transfer or lease of the subject land to the encroaching owner, or the grant to the encroaching owner of any estate or interest therein or any easement right or privilege in relation thereto,

(c)     the removal of the encroachment.

(3)     The Court may grant or refuse the relief or any part thereof as it deems proper in the circumstances of the case, and in the exercise of this discretion may consider amongst other matters:

(a)     the fact that the application is made by the adjacent owner or by the encroaching owner, as the case may be,

(b)     the situation and value of the subject land, and the nature and extent of the encroachment,

(c)     the character of the encroaching building, and the purposes for which it may be used,

(d)     the loss and damage which has been or will be incurred by the adjacent owner,

(e)     the loss and damage which would be incurred by the encroaching owner if the encroaching owner were required to remove the encroachment,

(f)     the circumstances in which the encroachment was made.

17. The term “Court” is defined in s 2 of the Act to mean “the Land and Environment Court”.

18. As for the other potential issues identified by the Lous, the expression “common law proprietary rights” was not clearly articulated by the Lous in their submissions. In any event, it should be noted that the Court has ancillary jurisdiction under s 16(1A) of the Land and Environment Court Act 1979 (“LEC Act”) to hear and dispose of matters that are ancillary to a matter that falls within its jurisdiction.

19. Were a boundary determination application made, then pursuant to s 135J of the Real Property Act 1900 (“the RPA”) the Court had appellate jurisdiction in relation to the determination. However, as mentioned above, neither party has applied for a boundary determination.

20. The parties’ land is limited title pursuant to s 28T of the RPA, which can be remedied with a delimitation plan (see s 28V of the RPA). There is no mechanism, however, to appeal a determination of the Registrar General in relation to the removal or refusal to remove a limitation recorded in the folio – it is an administrative exercise. In any event, no delimitation plan has been lodged by either party and it does not form part of the present Class 3 proceedings.

21. In short, this Court has jurisdiction to determine the proceedings.

22. Second, the Court plainly has the statutory power to grant the relief sought. In respect of the injunctive relief, see s 22 of the LEC Act (Arcadia Investment Holdings Pty Ltd v Environment Protection Authority [2022] NSWLEC 2), and as for the remaining relief sought in the Class 3 application, see s 3(2) of the Act.

23. Third, having regard to the unique skills of this Court, a superior court which specialises in almost all matters relating to the environment and planning regime in the State, this Court is, in my view, best placed to determine the issues raised by the proceedings. This conclusion finds expression in the statutory scheme of the Act, which specifically vests exclusive jurisdiction in this Court to deal with matters arising under it.

24. Fourth, the transfer will not result in a savings of time or resources to the parties. Rather, it would be antithetical to these objectives. This is because the matter has been set down for final hearing in less than two months’ time. This hearing date, which the Van Beeks wish to retain, would be lost were a transfer made. Given the Van Beeks’s compliance with the timetabling orders to date, this would result in injustice to them.

25. Fifth, the judicial allocation of resources favours retention of the matter in this Court. A hearing date has been set and resources allocated to the case management of the matter. This will be lost if the proceedings are transferred and additional judicial resources will be required to be marshalled in the Supreme Court to deal with them. This includes, it may be assumed, a new timetable set for the finalisation of evidence and the filing of submissions.

26. Sixth, given the delay by the Lous in making this application, with a final hearing relatively imminent which the Van Beeks’s desire to maintain, it would be unjust to them to further delay the finalisation of the proceedings by transferring the matter to another court.

27. For these reasons, the request to transfer the proceedings was denied.

The Proceedings Ought Not be Stayed

28. Given that the stated purpose of the stay was to halt proceedings pending transfer, and the transfer has been refused, there is no need for a stay.

29. Even if some other basis for the stay is maintained (the Lous’s submissions were ambiguous in this regard), the Lous have not demonstrated any basis for the grant of a stay having regard to the applicable legal principles (see Misan v Markham Real Estate Partners (KSW) Pty Ltd [2022] NSWCA 154 at [20] per Leeming JA and CVA Apartments Pty Ltd v Burwood Council; Marsden Hotel Burwood Pty Ltd v Burwood Council; The Marsden Hotel Pty Ltd v Burwood Council [2020] NSWLEC 11 at [40]-[44]). I therefore declined to order a stay.

Costs

30. In their written submissions the Van Beeks sought their costs of the motion pursuant to s 14 of the Act. However, the motion merely sought costs in the cause. After some discussion, the Van Beeks agreed that the latter was the more appropriate costs order in the circumstances.

Orders

31. The orders of the Court were therefore that the notice of motion was dismissed with the costs of the motion being costs in the cause. Consequential timetabling orders preserving the hearing date of 30 April 2025 were subsequently made with the consent of the parties.

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Decision last updated: 19 March 2025