Gunther v Taylor [2008] NSWLEC 127

Land and Environment Court of New South Wales

CITATION : Gunther v Taylor [2008] NSWLEC 127

APPLICANTS Bruno Gunther and Irmgard Gunther PARTIES : RESPONDENTS Ian Taylor and Elizabeth Taylor

FILE NUMBER(S) : 40701 of 2006

CORAM: Preston CJ

KEY ISSUES: Costs :- proceedings settled - court orders substantially in terms and to effect claimed by applicants in originating process - costs ordered - adjustment of amount ordered

Encroachment of Buildings Act 1922 LEGISLATION CITED: Land and Environment Court Act 1979 s 19 Surveying Act 2002 s 18

CASES CITED: Kiama Council v Grant (2006) 143 LGERA 441

DATES OF HEARING: 18 March 2008

EX TEMPORE JUDGMENT DATE : 18 March 2008

APPLICANTS Mr W Purdon (solicitor) SOLICITORS LEGAL REPRESENTATIVES: William Purdon

RESPONDENTS In person

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

PRESTON CJ

18 MARCH 2008

40701 OF 2006

GUNTHER V TAYLOR

JUDGMENT

1 HIS HONOUR: At the end of the first day of hearing of these proceedings I made orders by consent that effectively concluded the proceedings other than as to costs, which were reserved. 2 The applicants now seek an order that the respondents pay the applicants' costs of the proceedings. The respondents oppose that order and submit that each party should pay their own costs. 3 The applicants and respondents are neighbours in Heathcote. The respondents, who reside at 27A Lunar Avenue, built a swimming pool which had surrounding paving supported by a concrete block retaining wall along the common boundary with the applicants' property at 62 Boundary Road, Heathcote. 4 The construction of a swimming pool, paving and retaining wall was ultimately authorised by various building approvals issued by Sutherland Shire Council. Although contractors installed the swimming pool, the respondents constructed the concrete block retaining wall and paving themselves. This wall is the source of the problem between the neighbours. 5 The wall was allegedly poorly constructed, structurally inadequate and without proper drainage measures. The applicants allege that the wall allowed movement of soil and water onto the applicants' property in excess of what should have occurred if the wall had been properly constructed. Furthermore, the applicants allege that the wall encroached onto the applicants' property. 6 The applicants raised concerns about the wall with the respondents and with Sutherland Shire Council. The applicants allege that the respondents had not complied with the building approvals in constructing the wall, that the wall was defective in the respects specified and that the wall encroached onto the applicants' land. 7 The respondents did not take action that was effective to complete the wall in accordance with the building approvals, to remedy the alleged defects in the wall or to remove the encroachments. Instead, the respondents engaged in communications and dialogue with the applicants as to the precise nature of the concerns but no effective action was taken to address those concerns. 8 Ultimately, the applicants commenced proceedings in this Court seeking orders that the respondents remove the encroachments and comply with the building approvals. The applicants commenced proceedings by application in Class 4 of the Court's jurisdiction on 10 August 2006. 9 The claim for relief in relation to the encroachments may not properly have been a matter to be brought within Class 4 of the Court's jurisdiction. Proceedings under the Encroachment of Buildings Act 1922 are assigned by s 19 of the Land and Environment Court Act 1979 to Class 3 of the Court's jurisdiction. However, a claim is not improperly brought if it is commenced in an incorrect class of the Court's jurisdiction and the Court can reassign the claim to the correct class of the Court's jurisdiction. 10 On the first return of the application, the list judge made directions for the applicants to file and serve points of claim and affidavits and re-list the matter on 6 October 2006. On 6 October 2006, the list judge made further directions including in relation to the request for and response of further and better particulars to the points of claim, the filing and service by the respondents of points of defence and affidavits, the filing and service by the applicants of a reply to the points of defence and affidavits in reply, and the obtaining of a hearing date. The hearing was fixed later that day for two days on 29 and 30 November 2006. The parties prepared documents in the nature of pleadings and affidavits in terms of the list judge's directions. 11 The hearing of the proceedings commenced before me on 29 November 2006. During the course of the hearing it became evident that the retaining wall did encroach onto the applicants' property and that there were issues as to the nature of construction of the wall and whether it had been completed in accordance with the relevant building approvals in at least some respects. 12 After discussion between the parties and with some assistance from me as to the matters that the parties might consider to include in any settlement agreement, the parties settled the matter except as to costs. 13 The settlement involved, in essence, the respondents making a development application to Sutherland Shire Council to demolish the existing wall and replace it with a proper wall; upon obtaining consent, arranging construction of the wall in accordance with the consent and by a licensed professional builder; and arranging for a registered surveyor to certify that the new wall is wholly within the respondents' property. 14 By pursuing this course of action, the applicants' concerns about the existing wall's encroachment, defects in construction and non-compliance with previous building approvals would be remedied. The existing wall would be replaced by a new, properly constructed wall, wholly on the respondents' land and in accordance with a fresh development consent. 15 The Court made orders in terms of the detailed settlement agreed between the parties. The proceedings were adjourned to 28 September 2007 to allow time, some 10 months, for this process to occur. Unfortunately, although development consent was obtained, the applicants had not carried out work in relation to demolition of the existing wall and replacement with a new wall by 28 September 2007. 16 The respondents had removed a large tree adjacent to the pool in May 2007. However, the respondents allege that the applicants had not allowed access to their property for the respondents' contractor to carry out the work, contrary to one of the Court orders, order 7. This delayed the work being completed. 17 On 28 September 2007, the list judge extended the time for compliance to 15 October 2008 and noted the parties' agreement that the applicant would authorise access for a small excavator to dig out the foundations. The proceedings were adjourned to 15 February 2008. By 15 February 2008, the work had been completed and a surveyor had certificated that the wall did not encroach onto the applicants' property. 18 The applicants indicated their desire to apply for costs. The list judge made directions for each party to file affidavits in relation to costs and the matter was listed for hearing today, 18 March 2008. 19 At the hearing today, the applicants and respondents each read their own affidavits chronicling events leading up to and in the course of the proceedings. Extensive correspondence between the parties and their representatives was annexed. 20 The applicants' argument is essentially that they were forced by the respondents' conduct to come to court; by the orders agreed between the parties at the hearing of the substantive proceedings, the respondents effectively surrendered to the applicants; and the applicants were successful in obtaining the relief that they had sought in their application to the Court. 21 The respondents conceded that the existing wall had encroached onto the applicants' property and needed to be pulled down and rebuilt wholly on the respondents' land. However, the respondents submitted that they would have been prepared to do this without the necessity for court action and orders. 22 The respondents submitted that had the applicants allowed their surveyor to access their property to survey the wall, the respondents would have been able to verify the applicants' claim that the wall encroached and the respondents would have been able to negotiate with the applicants about demolishing and rebuilding the wall. 23 The respondents submitted that the applicants imposed a condition on the applicants' surveyor accessing their land that the applicants provide a copy of any survey so produced free of charge. The respondents refused to accept this condition for reasons relating to the past history of dealings between the neighbours, including that the applicants had refused to provide free of charge other documents in the past to the respondents. So the respondents did nothing in relation to the survey. 24 The respondents conceded that earlier they had received a letter from the applicants' surveyor, Mr Cochrane, that stated that the "concrete block wall appears to encroach by up to 0.13m between points A and B" (para 20 of Mr Taylor's affidavit of 8 March 2008). However, the respondents submitted they were entitled to reject the surveyor's opinion because there was no indication of where points A and B were and because the surveyor had used the word "appears". 25 The respondents submitted that it was not until they were able to arrange for their own survey, which confirmed that the wall encroached onto the applicants' property, that they were prepared to accept that fact and that it would need to be demolished and rebuilt. 26 The respondents' submissions misquotes the applicants' surveyor's letter. The letter of Mr Cochrane is dated 7 May 2003 and is annexed to Mr Taylor's affidavit. The relevant part of the letter referring to the encroachment between points A and B does not use the word "appears" at all. It states: