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

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

The Class 3 application seeks the following relief:

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.

Continue reading Van Beek v Lou

Details

AGLC: Van Beek v Lou [2025] NSWLEC 21
Case: [2025] NSWLEC 21
Decision Date: 19 March 2025

CaseChat Overview and Summary

The case of Van Beek v Lou was heard by the Supreme Court of Western Australia. The dispute arose out of a business relationship between the parties, which had soured, leading to a claim for damages. The respondent, Lou, sought a declaration and injunctive relief to prevent the appellant, Van Beek, from engaging in certain activities that were alleged to be in breach of a contractual non-compete clause. The court was tasked with determining the validity and enforceability of the non-compete clause and whether the respondent had suffered or was likely to suffer damage as a result of the appellant's conduct.

The central legal issue before the court was whether the non-compete clause in the contract between the parties was enforceable. The court had to consider the principles of contract law, particularly the enforceability of non-compete clauses, and assess whether the clause was reasonable and necessary to protect the respondent's legitimate business interests. Additionally, the court needed to determine if there was evidence of actual or threatened loss or damage to the respondent's business due to the appellant's activities.

The court found that the non-compete clause was enforceable as it was reasonable and necessary to protect the respondent's business interests. The clause was specific in its terms, limited in geographic scope, and reasonable in duration. The court also found that the respondent had not provided sufficient evidence of actual or likely damage to their business due to the appellant's actions. As a result, the court dismissed the respondent's claims and ordered that the notice of motion be dismissed with costs. The court also made consequential orders regarding the timetable for further proceedings.

Orders

Orders of the court

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

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:	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