MORRIS v. THOMAS [1993] NSWLEC 177 (1 November 1993) [1993] NSWLEC 2

Land and Environment Court of New South Wales

CITATION : MORRIS v. THOMAS [1993] NSWLEC 177 (1 November 1993) [1993] NSWLEC 2 PARTIES : MORRIS v. THOMAS FILE NUMBER(S) : 30204 of 1991 CORAM: Bignold J KEY ISSUES: :- implementation of orders made in concluded proceedings - application to set aside Certificate of Taxation LEGISLATION CITED: Encroachment of Buildings Act 1922 Supreme Court Rules Pt 52 r 54A McLelland J in Phillips v Walsh (1990) 20 NSWLR 206 ; CASES CITED: in Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691; Phillips v Walsh DATES OF HEARING: 26 October 1993 DATE OF JUDGMENT: 10/27/1993

Mr J Kosmin (Sol) LEGAL REPRESENTATIVES: Mr B Hodgekiss (Barr)

JUDGMENT: Bignold J.: I publish my reasons for judgment on the Applicant's Notice of Motion. My decision was to adjourn the proceedings to 10 November 1993 and to direct the Respondent to serve and file any affidavits by 3 November 1993.

This is a Notice of Motion in which the Applicant seeks a number of orders in proceedings involving an application and cross application under the Encroachment of Buildings Act 1922 which were concluded by my judgment delivered on 22 May 1991 in which the following orders were made: "1. Application and cross-application each granted in part and dismissed in part. 2. Order the Applicant to remove the following encroachments from No 9 Leura Road, Double Bay. (a) the roof, gutter and quarry tiles of the carport located at the north-western corner of No 11 Leura Road, Double Bay; and (b) the guttering and barge board constructed on the roof of the lounge room wall. 3. Order the Applicant to pay the Respondent's costs. 4. On payment of the costs referred to in Order 3 and any expenses reasonably incurred by the Respondent in respect of the grant of easement hereinafter granted order the Respondent do grant to the Applicant an easement in respect of the encroaching lounge-room wall and encroaching carport wall encroaching upon No 9 Leura Road, Double Bay during the life of those encroachments. 5. Exhibits be returned."