Perpetual Trustees Victoria Ltd v Suncorp-Metway Ltd & Anor [2009] NSWLEC 1326

Land and Environment Court of New South Wales

CITATION : Perpetual Trustees Victoria Ltd v Suncorp-Metway Ltd & Anor [2009] NSWLEC 1326

APPLICANT Perpetual Trustees Victoria Ltd

FIRST RESPONDENT PARTIES : Suncorp-Metway Ltd

SECOND RESPONDENT Amer El Nachar

FILE NUMBER(S) : 30263 of 2009

CORAM: Pearson C

KEY ISSUES: ENCROACHMENT :-

Encroachment of Buildings Act 1922 LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979

Amateck Ltd v Googoorewon Pty Ltd (1993) 176 CLR 471 Attard v Canal [2005] NSWLEC 222 CASES CITED: Black v Apps [2005] NSWSC 943 Cuthbert v Hardie (1989) 17 NSWLR 321 Wherry v Trustees of the Sisters of Charity of Australia (2000) 111 LGERA 216

DATES OF HEARING: 14 September 2009

DATE OF JUDGMENT: 6 October 2009

APPLICANT Mr M Staunton, barrister Instructed by Mr S Stierli, Hicksons FIRST RESPONDENT LEGAL REPRESENTATIVES: Mr P James, solicitor James Legal Pty Ltd

SECOND RESPONDENT No appearance

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Pearson C

6 October 2009

30263 of 2009 Perpetual Trustees Victoria Ltd v Suncorp-Metway Ltd and Amer El-Nachar

JUDGMENT 1 Commissioner: The second respondent is the registered proprietor of Lot 1 DP 215837 and Lot 1 DP 211112, which are jointly known as 29 Angus Avenue Auburn (the property). A house is erected on Lot 1 DP 211112 (the House lot); Lot 1 DP 215837 (the Driveway lot) is the driveway used for access to the side and rear of the house. At the rear of the property a laundry shed and carport are erected across both lots. 2 By mortgage registered No AC135653 dated 8 December 2005 the first respondent became the first registered mortgagee of the land in Lot 1 DP 211112, and following judgment for possession obtained possession on 18 April 2008. By mortgage registered No AD142869 dated 2 March 2007 the applicant became the first registered mortgagee of the land in Lot 1 DP 215837, and following judgment for possession obtained possession on 21 November 2008. The House lot was sold at auction on 20 September 2008 for $420,000. The contract has been rescinded; in the meantime, however, the purchaser obtained access and there has been damage to the property. 3 On 27 April 2009 the applicant commenced proceedings pursuant to s3(2) of the Encroachment of Buildings Act 1922 (the Act) seeking orders that the first respondent remove so much of the shed, carport, and eaves and guttering along the south side of the dwelling as encroach on the Driveway lot, and in the alternative, an order that the first applicant pay compensation for transfer of the applicant's property to the first respondent. The application was amended on 10 July 2009 to remove the alternative claim. 4 There has been no appearance by the second respondent. The applicant has filed an affidavit of attempted service by a licensed process server stating that on attending the property the premises were vacant and a neighbour informed her that the second respondent had departed overseas some time ago. It was apparent from the view that the premises are still vacant. An affidavit of enquiries recounts unsuccessful attempts to locate the second respondent, and I am satisfied that the applicant has made reasonable efforts to locate the second respondent. There was no application for an order for substituted service, however, there is no reason to expect that the second respondent would have wished to participate in the proceedings which are contested by the two mortgagees in possession. There are no orders sought against the second respondent and consequently no prejudice to him. 5 The proceedings were commenced onsite as a conciliation conference under s34 of the Land and Environment Court Act 1979, however no agreement was reached and the matter proceeded to a hearing. Relevant statutory provisions 6 The relevant definitions in s2 of the Act are: Adjacent owner means the owner of land over which an encroachment extends.