NSW Caselaw
Land and Environment Court of New South Wales
CITATION : Kelly v Samiri & Anor [1989] NSWLEC 222 APPLICANT Kelly PARTIES : RESPONDENT Samiri & Anor FILE NUMBER(S) : 40130 of 1989 CORAM: Bignold J KEY ISSUES: :- LEGISLATION CITED: Land and Environment Court Act Encroachment of Buildings Act 1972 Whitehouse v. Remme (1988) 64 LGRA 375; CASES CITED: Bathurst City Council v. Saban (1985) 2 NSWLR 704; Bryant's Manly Vale Pty. Ltd. v. Francis (1986) 4 NSWLR 635 ; The Anson Bay Company (Australia) Pty. Ltd. v. Bob Blakemore Pty. Ltd. (Court of Appeal - unreported 18th April, 1989). DATES OF HEARING: DATE OF JUDGMENT: 08/11/1989
LEGAL REPRESENTATIVES:
JUDGMENT:
Bignold J.: By its Notice of Motion filed on 4th August, 1989 the 1st Respondent seeks an order that class 4 proceedings pending in this Court and listed for hearing next Friday be struck out or stayed on the grounds of abuse of process.
The class 4 proceedings were commenced on 19th May, 1989 claiming prohibitory and mandatory injunctions against the 1st Respondent in respect of building works carried out on the Applicant's land situate at No. 4 Tobruk Avenue, Balmain. The 1st Respondent is the owner of the adjoining premises No. 6 Tobruk Avenue and it appears has carried out building works on his property which have involved encroachments upon the Applicant's property.
The proceedings have been mentioned before the Registrar on a number of occasions and on 28th July, 1989 they were listed for hearing on 18th August, 1989.
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