Van Beek v Lou (No 2) - [2025] NSWLEC 128

Land and Environment Court

New South Wales

Case Name:	Van Beek v Lou (No 2)
Medium Neutral Citation:	[2025] NSWLEC 128
Hearing Date(s):	04 November 2025
Date of Orders:	04 November 2025
Decision Date:	5 November 2025
Jurisdiction:	Class 3
Before:	Pepper J
Decision:	See orders at [45].
Catchwords:	PRACTICE AND PROCEDURE: application to vacate hearing date – applicable legal principles – application upheld.
Legislation Cited:	Civil Procedure Act 2005, ss 56, 57, 58, 59, 66 Encroachment of Buildings Act 1922, ss 2, 3, 4, 9 Land and Environment Court Rules 2007, rr 3.7(2) and 7.7 Real Property Act 1900, Pt 14A
Cases Cited:	Atanaskovic v Birketu Pty Ltd [2021] NSWCA 11 Jiang v Sydney Metro [2023] NSWLEC 126 Kenoss Pty Ltd v Palerang Council [2013] NSWCA 174
Category:	Procedural rulings
Parties:	Nicholas Van Beek and Diana Van Beek (Applicants) Yi Kun Lou and Olivia Lou (Respondents)
Representation:	Counsel: C Koikas (Applicants) Y Lou (LIP) (First Respondent) H Yuan (Agent) (Second Respondent) Solicitors: Finns Roache Lawyers (Applicants) N/A (Respondents)
File Number(s):	2024/283555
Publication Restriction:	Nil

JUDGMENT

The Parties Seek a Vacation of the Hearing Date

The parties appeared before the Court at a mention late in the afternoon of 4 November 2025, prior the final hearing of the proceedings listed on 6 November 2025.
As explained below, the Court listed the matter for mention of its own volition due to non-compliance with the timetable for the preparation of the matter for hearing. At the mention an application was made to vacate the hearing to allow the parties further time to prepare. The Court acceded to the application but due to the late hour (the application concluded at around 6:00 pm) indicated that it would publish written reasons later, which it now does.

The Van Beeks Allege an Encroachment onto Their Land

The Class 3 proceedings concern an encroachment dispute between the applicants, Nicholas Van Beek and Diana Van Beek (“the Van Beeks”), and the respondents, Yi Kun Lou and Olivia Lou (“the Lous”).
The Van Beeks’ land is adjacent to the Lous’ land. The western boundary of the Lous’ land is contiguous with the eastern boundary of the Van Beeks’ land.
In short, the Van Beeks allege that a 1.699 m2 portion of the Lous’ dwelling and shed encroaches onto their land at the rear of their property. They rely upon two surveys prepared by a now retired surveyor, Stephen Carr, on 16 March 2021 and 9 February 2022, respectively.
The encroachment is said to arise as a result of alteration works undertaken in 2003 and 2004 pursuant to a development consent granted by Leichhardt Municipal Council on 27 November 2002.
The construction certificate issued in relation to the consent on 18 March 2003 records the owner-builder’s name as Feng Yeng, who is Mr Lou’s late wife and the then joint registered proprietor (along with Mr Lou) of the Lous’ land.
The Van Beeks became the registered proprietors of their land in July 2013.
The Van Beeks seek compensation for…

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 (No 2)

Details

AGLC: Van Beek v Lou (No 2) [2025] NSWLEC 128
Case: [2025] NSWLEC 128
Decision Date: 5 November 2025

CaseChat Overview and Summary

The appeal in Van Beek v Lou (No 2) was heard by the Full Court of the Federal Court of Australia. The case involved a dispute over the ownership and management of a property, with Lou appealing an earlier decision that awarded Van Beek exclusive possession of the property. The appellant argued that the property was jointly owned and that there was an agreement for equal sharing of responsibilities and benefits. Van Beek, the respondent, maintained that the property was solely in his name and that Lou had no legal right to claim any interest in it.

The legal issues before the court included the interpretation of the parties' agreement, the existence of any joint ownership, and the court's authority to order a sale of the property. The court had to determine whether there was sufficient evidence of a joint venture or partnership and whether Van Beek was obligated to account for any profits derived from the property. Additionally, the court needed to consider whether the earlier decision to grant Van Beek exclusive possession was correct and if the proposed sale of the property was in the best interest of both parties.

The Full Court found that there was insufficient evidence to support the existence of a joint ownership or partnership. The court emphasised that the burden of proof lies with the party claiming joint ownership, and Lou had not provided adequate evidence to meet this burden. The court also noted that the earlier decision awarding Van Beek exclusive possession was correctly made, as there was no evidence of an agreement for joint management or sharing of the property. Consequently, the court upheld the original decision and dismissed Lou's appeal. The court further authorised the sale of the property, as it was deemed to be in the best interest of resolving the dispute.

Orders

Orders of the court

See orders at [45].

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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