Moini Pty Ltd ATF Moini Property Ross Street Glebe Trust v The Owners – Strata Plan No. 91066 [2021] NSWLEC 1590

Land and Environment Court New South Wales

Medium Neutral Citation: Moini Pty Ltd ATF Moini Property Ross Street Glebe Trust v The Owners – Strata Plan No. 91066 [2021] NSWLEC 1590 Hearing dates: Conciliation conference on 30 June, 22 July, 17 August and 2 September 2021 Date of orders: 8 October 2021 Decision date: 08 October 2021 Jurisdiction: Class 3 Before: Horton C Decision: See orders at [12] Catchwords: ENCROACHMENT OF BUILDINGS – registration of easement – removal of the remaining encroachment – conciliation conference – agreement between the parties – orders Legislation Cited: Conveyancing Act 1919, s 88B, Schedule 8 Encroachment of Buildings Act 1922, ss 2, 3, and 14 Land and Environment Court Act 1979, ss 16, 19(c1), and 34 Category: Principal judgment Parties: Moini Pty Ltd ATF Moini Property Ross Street Glebe Trust (Applicant) The Owners – Strata Plan No. 91066 (Respondent) Representation: Counsel: A Adams (Solicitor) (Applicant) L Raffaele (Solicitor) (Respondent)

Solicitors: Mills Oakley (Applicant) Bartier Perry (Respondent) File Number(s): 2020/278821 Publication restriction: No

Judgment 1. COMMISSIONER: These Class 3 proceedings were brought by the applicant, Moini Pty Ltd, as the registered proprietor of Lot 1 DP 736285 and Lot 2 DP 792115, otherwise known as 13-15 Ross Street, Glebe, against the Respondent, who is the registered proprietor of SP 91066 at 11 Ross Street, Glebe. 2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 30 June 2021. I presided over the conciliation conference. 3. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involves the registration of the extension of a vertical cross-easement for the common boundary wall with the Land Registry Services NSW and the payment of compensation, and the removal of other encroachments comprising concrete piles, slurries and a capping beam. 4. The parties sought an adjournment of the conciliation conference to permit certain works to be undertaken, consistent with an agreed work method statement. 5. While the works were being undertaken, the NSW state government announced a shut down of construction sites which necessitated the further adjournment of the matter until 2 September 2021, at which time I directed that an agreement be filed no later than 23 September 2021. 6. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 24 September 2021. 7. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if the parties' decision is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising the functions under ss 16, 19(c1) of the LEC Act to resolve the dispute under the Encroachment of Buildings Act 1922 (Encroachment Act) in accordance with the parties' agreed orders as set out in the s 34 agreement filed with the Court. 8. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be ss 16, 19(c1), and 34 of the LEC Act. 9. I am satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions, in accordance with s 34(3) of the LEC Act, as the jurisdictional prerequisites have been satisfied as follows: 1. The Applicant has brought the proceedings in accordance with the definitions of "encroaching owner" and "owner" in s 2 of the Encroachment Act, and filed the Class 3 application in this Court in accordance with s 3 of the Encroachment Act. 2. The proceedings fall within Class 3 of the Court's jurisdiction pursuant to s 19(c1) of the LEC Act. 3. The Court arranged a s 34 conciliation conference pursuant to s 34(1) of the LEC Act. 4. The parties have reached agreement as to the terms of an easement pursuant to s 88B of the Conveyancing Act 1919, and the payment of monies by the Applicant to the Respondent that has resolved the issues between the parties, and for in respect of which the Court also has power to make the orders under s 16(1) of the LEC Act. 1. The Court has power to make those orders as requested by the parties in accordance with s 2 after considering the issues raised in s 3 of the Encroachment Act. 2. As the parties' decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision.