DANZEY v SHAI-HEE [1988] NSWCA 33

DANZEY v SHAI-HEE

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KirBy P, Hope and SAMUELS JJA 7 October 1988, 7 October 1988

[1988] NSWCA 33

LAND AND ENVIRONMENT — construction of CL35 of Interim Development Order No 1 (Municipality of Waverley) — meaning of "storey". AGENCY — implication of authority to agent to do whatever necessary for or ordinarily incidental to effective execution of express authority — Article 28 Bowstead on Agency 13th Ed at 72 applied. ORDER Appeal dismissed with costs.

Samuels JA The appellant applied to the Land and Environment Court for declarations and for an order restraining the first respondent from commencing construction of an additional storey and effecting alterations to his premises in Hewlett Street, Bronte. Perrignon J dismissed the application and it is from that order that the appeal comes. This is a class 4 proceeding and the appeal is therefore open on fact and law (see s58(1) of the Land and Environment Court Act 1979).

The situation of the subject premises, I can take with gratitude, from the judgment below. They have a frontage on the north to Hewlett Street. From that frontage the block slopes steeply to the rear and is adjoined on its southern boundary by the appellant's premises. At the Hewlett Street level the subject premises consist of bedrooms, bathroom, dining room and so forth. Beneath that level there are a garage, a laundry with a water closet and shower and a room which was the subject of much contention below and which is described in the plan as a storeroom. The level of the floor of the storeroom and the laundry is about one metre lower than that of the garage. I can call this area, the area below the Hewlett Street level, the basement area.

The evidence established to Perrignon J's satisfaction that some time after the first respondent went into occupation, he commenced to use the storeroom for the storage and preparation of posters which he sold at the markets. This use of the room continued from about late 1984 until March or April 1986 when the respondent discontinued it at the request of one of the council's officers. The learned judge accepted the first respondent's evidence that his use of this room for that purpose was intended to be temporary until the proposed improvements and renovations to the premises had been completed. So far as it is material, no challenge has been made to that finding and I can see no reason in any event why I should dissent from it.