The Uniting Church in Australia Property Trust (NSW) v Crowe [2024] NSWSC 1387

Supreme Court New South Wales

Medium Neutral Citation: The Uniting Church in Australia Property Trust (NSW) v Crowe [2024] NSWSC 1387 Hearing dates: 17, 18, 19 and 20 June; 5 July 2024; further written submissions ending 22 July 2024 Date of orders: 31 October 2024 Decision date: 31 October 2024 Jurisdiction: Equity - Real Property List Before: Parker J Decision: See [498]–[501] Catchwords: TORTS — trespass to land — defences — land owned by plaintiff and plaintiff's predecessor in title used by defendant's predecessors in title and by defendant as garden since 1960s — plaintiff aware of use by 2009 — balcony, roof overhang, concrete slab, and deck constructed by defendant on, or projecting into airspace of, plaintiff's land in 2009-2010 without plaintiff's knowledge — deck reconstructed by defendant in 2019 — plaintiff then became aware of defendant's construction works — whether works impliedly licensed by plaintiff — limitation — balcony and roof overhang gave rise to continuing trespass — deck (in original form) and concrete slab statute did not EQUITY — equitable remedies — injunctions — trespass to land — mandatory injunction to remove structures — Lord Cairns' Act damages in lieu of injunction — "good working rule" in Shelfer v City of London Electric Lighting Company [1895] 1 Ch 287 — adequacy of damages — hardship — mandatory injunction awarded ESTOPPEL — estoppel by convention — discussions concerning purchase of plaintiff's land by defendant — defendant became aware of unregistered lease between parties' predecessors in title and asserted during discussions that lease 'existed' — whether mutual assumption that defendant entitled to remain in occupation indefinitely — reliance — detriment — no estoppel as to indefinite occupation by defendant LAND LAW — Encroachment of Buildings Act 1922 — application by defendant for compulsory transfer of, or easement over, plaintiff's land to accommodate encroaching structures built by defendant — defendant's knowledge of encroachment at time of construction — hardship — application refused LAND LAW — easements — application by defendant for compulsory easement over outdoor stairs built by defendant's predecessor in title on plaintiff's land — Conveyancing Act 1919, s 88K — "original architectural vision" of defendant's predecessor in title — heritage factors — past use by defendant and defendant's predecessors in title — easement not reasonably necessary for the effective use or development of defendant's land — alleged necessity resulted from defendant's own conduct in building up to his boundary — application refused Legislation Cited: Chancery Amendment Act 1858 (21 & 22 Vict c 27) Conveyancing Act 1919 (NSW) Encroachment of Buildings Act 1922 (NSW) Encroachment of Buildings Act 1955 (Qld) Limitation Act 1969 (NSW) Supreme Court Act 1970 (NSW) Cases Cited: 117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 (1998) 43 NSWLR 504 Arcidiacono v The Owners – Strata Plan No 17719; Arcidiacono v The Owners – Strata Plan No 61233 [2020] NSWCA 269 Bankstown City Council v Alamdo Holdings Pty Ltd (2005) 223 CLR 660 Break Fast Investments Pty Ltd v PCH Melbourne Pty Ltd (2007) 20 VR 311 Clegg v Dearden (1948) 12 QB 576 Crowe v Woollahra Municipal Council [2021] NSWLEC 1659 Haddans Pty Ltd v Nesbitt [1962] QWN 98 Hanny v Lewis (1998) 9 BPR 16,205 Holmes v Wilson (1839) 10 Ad & El 503; 113 ER 190 Hudson v Nicholson (1839) 5 M & W 437 ING Bank (Australia) Ltd v O'Shea [2010] NSWCA 71 ING Bank (Australia) Ltd v O'Shea [2010] NSWCA 71 Jaggard v Sawyer [1995] 1 WLR 269 Kalgovas v Iliopoulos [2022] NSWSC 70 Khattar v Wiese [2005] NSWSC 1014 Konskier v Goodman Ltd [1928] 1 KB 421 Kosciusko Thredbo Pty Ltd v Commissioner of Taxation (1987) 168 CLR 147 Lakes Edge Developments Ltd v Kawarau Village Holdings Ltd [2017] 3 NZLR 336 Llavero v Shearer [2014] NSWSC 1336 Lord v McMahon [2015] NSWSC 1619 McIntosh v Morris [2021] NSWCA 225 Mexfield Housing Co-operative Ltd v Berrisford [2012] 1 AC 955 Miller Heiman Pty Ltd v Sales Principles Pty Ltd [2017] NSWCA 106 Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2012] NSWCA 445 Moratic Pty Ltd v Gordon [2007] NSWSC 5 Owners Strata Plan 4085 v Mallone [2006] NSWSC 1381 Permewans (Walgett) Pty Ltd v Morrison [1966] 2 NSWR 32 Petrie v Dickson [2024] NSWSC 972 Redland Bricks Ltd v Morris [1970] AC 652 Shadbolt v Wise [2002] QSC 348 Shadbolt v Wise [2003] QCA 241 Shelfer v City of London Electric Lighting Company [1895] 1 Ch 287 Sheppard v Smith [2021] NSWSC 1207 Tabcorp Holdings Ltd v Bowen Investments Pty Ltd (2009) 236 CLR 272 The Owners – Strata Plan No 61233 v Arcidiacono; The Owners – Strata Plan No 17719 v Arcidiacono [2019] NSWSC 1307 Treweeke v 36 Wolseley Road Pty Ltd (1973) 128 CLR 274 Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 Texts Cited: J Eldridge and Ors, Fleming's Law of Torts (11th ed, 2024, Thomson Reuters) Meagher, Gummow and Lehane's Equity: Doctrines and Remedies (5th ed, 2015, LexisNexis Butterworths) P Butt, Butt's Land Law (7th ed, 2017, Thomson Reuters) Category: Principal judgment Parties: Statement of Claim filed 31 October 2022 The Uniting Church in Australia Property Trust (NSW) (Plaintiff) Stephen Desmond Crowe (Defendant)