CANTAMESSA v SANDERSON [1993] NSWCA 48

CANTAMESSA v SANDERSON

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

Cripps JA 27 September 1993

[1993] NSWCA 48

Cripps JA. This is an application by the appellant for an order that the respondent to the appeal be restrained from carrying out certain works on an area of land pending the hearing of the appeal. The proceedings before Powell J were proceedings under the Encroachment of Buildings Act. It is not disputed that the relevant area is, on the plan handed to me, in a triangle coloured pink. The land was being used by Miss Cantamessa and is in fact owned by Robert Sanderson and Vicky Sanderson.

In the proceedings before Powell J the appellant sought orders having the effect of transferring that land to Miss Cantamessa with her paying compensation to the Sandersons. The present orders are resisted.

There was some talk about a jurisdiction problem in the course of the judgment but both parties have advised me that the proceedings were conducted onthe basis that the Supreme Court had jurisdiction and I propose to deal with it on that basis. (It may very well be that the first doubts I had about the matter were misplaced.) But what it comes down to is this: that Powell J took the view, if I understand his judgment correctly, that none of the walls or the planter box, or part of the planter box, or the tiles were relevantly encroachments and, therefore, the Encroachment of Buildings Act did not apply. He also took the view that even if he were of the opinion that they were, he would not have made the orders asked for in the exercise of his discretion; a discretion nobody has suggested he does not have.

Mr Douglas QC, on behalf of Miss Cantamessa, submits that Powell J erred — at least he wishes to argue that he erred, in his discretionary decision because, if I understand his argument correctly, Powell J allowed his belief that there were no encroachments to intrude on to the discretionary decision he made. That submission is made even though Powell J said, in terms, that he did not.