TORTS – TRESPASS – TRESPASS TO LAND AND RIGHTS OF REAL PROPERTY
– WHAT CONSTITUTES TRESPASS AND DEFENCES THERETO
– DEFENCES –
ENTRY UNDER WRITS, ORDERS, STATUTORY AND OTHER LEGAL RIGHTS – where
Source
Original judgment source is linked above.
Catchwords
TORTS – TRESPASS – TRESPASS TO LAND AND RIGHTS OF REAL PROPERTY– WHAT CONSTITUTES TRESPASS AND DEFENCES THERETO– DEFENCES –ENTRY UNDER WRITS, ORDERS, STATUTORY AND OTHER LEGAL RIGHTS – whereapplicant developer’s craneswere trespassing over respondents’properties – where initial indication by one respondent was that thetrespass wasallowed – where respondents subsequently demanded thetrespass cease or the payment of compensation – where open offersofcompensation made by applicant – where respondent refused to accept anyoffer on the basis that they did not reflect thelevel of profit from reducedconstruction costs – whether applicant had made out the requirements ins 180 of the Property Law Act 1974 to impose a statutory right ofuser.117 York Street Pty Ltd v Propietors of Strata Plan No. 16123(1998) 43 NSWLR 504, appliedAttorney-General v Blake [2000] UKHL 45[2001] 1 AC 268,
discussedBlulock Pty Ltd v Majic [2001] NSWSC 1063
(2001) 10 BPR 19,143Debbula
Pty Ltd v The Owners, State Plan 6964 [2003] NSWSC 189
(2004) NSW Conv R 56-073,
appliedEx parte Edward Street Properties Pty Ltd [1977] Qd R 86,
followedGoodwin v Yee Holdings Pty ltd (1997) 8 BPR 15,795,
discussedHanny v Lewis [1998] NSWSC 385
(1998) 9 BPR 16,205, citedJacobsen
Holdings Pty Ltd v Drexel [1986] NZCA 75
[1986] 1 NZLR 324, discussedKatakouzinos v
Roufir Pty Ltd [1999] NSWSC 1045
(2000) 9 BPR 17,303, appliedLJP Investments Pty Ltd v
Howard Chia Investments Pty ltd (1990) 24 NSWLR 499, citedLynch v
White (1987) Q Conv R 54-257, followedMitchell v Boutagy [2001] NSWSC 1045
(1985) Q Conv R 54-202, followedRe Hodgskin (1999) Q Conv R 54-535,
followedRe Kindervater [1996] ANZ Conv R 331, followedRe
Roobottom, unreported, Helman J, Supreme Court of Queensland, OS 6080 of
1998, 17 July 1998, appliedRe Seaforth Land Sales Pty Ltd’s
Land [1976] Qd R 190, followedRe Seaforth Land Sales Pty Ltd’s
Land (No. 2) [1977] Qd R 317, followedRe Worthson Pty Ltd [1987]
1 Qd R 400, followedWengarin Pty ltd v Byron Shire Council [1999] NSWSC 485
(1999) 9
BPR 16,985, discussedWoodland v Manly Municipal Council [2003] NSWSC 392
(2003) 127
LGERA 120, appliedConveyancing Act 1919 (NSW), s
88KProperty Law Act 1974 (Qld), s 180
Judgment (90 paragraphs)
[1]
TORTS - TRESPASS - TRESPASS TO LAND AND RIGHTS OF REAL PROPERTY - WHAT CONSTITUTES TRESPASS AND DEFENCES THERETO - DEFENCES - ENTRY UNDER WRITS, ORDERS, STATUTORY AND OTHER LEGAL RIGHTS - where applicant developer's cranes were trespassing over respondents' properties - where initial indication by one respondent was that the trespass was allowed - where respondents subsequently demanded the trespass cease or the payment of compensation - where open offers of compensation made by applicant - where respondent refused to accept any offer on the basis that they did not reflect the level of profit from reduced construction costs - whether applicant had made out the requirements in s 180 of the Property Law Act1974 to impose a statutory right of user.
[2]
117 York Street Pty Ltd v Propietors of Strata Plan No. 16123(1998) 43 NSWLR 504, applied
[1] DOUGLAS J: Lang Parade Pty Ltd, the applicant, had, when this application was heard, spent more than $11 million building two apartment blocks on a parcel of land in Auchenflower bounded by Coronation Drive, Lang Parade and Dunmore Terrace. Its address is 8 Dunmore Terrace, Auchenflower, and includes 11 lots. Development approval was granted on 23 January 2004. Two "hammerhead" tower cranes are used on the building site. The first crane was erected in early May 2004 and is being used to build one block of apartments called "Linear East". The other crane, which was erected in July 2004, is used for the construction of the other block called "Linear North". The applicant seeks relief under s 180 of the Property Law Act1974 by the imposition of a statutory right of user by way of a licence permitting it to use 6 Lang Parade's and 355 Coronation Drive's airspace until 31 May 2005 to permit the two existing electric tower cranes to continue to be used for the development.
[26]
[2] The respondents own two properties on the south-eastern corner of Coronation Drive and Lang Parade. The first respondents, Michael Peluso, Frederick Peluso and Sheridan Peluso, own a property jointly at 6 Lang Parade while the second respondents, Michael Peluso and Frederick Peluso as trustees for the FJ Peluso Trust, own the other property at 355 Coronation Drive. They have refused permission for the creation of the easement, very clearly on the principal ground that they have not been offered as much money as they wished to receive for the grant.
[27]
[3] The applicant appears to have proceeded on the basis that the respondents did not object to the cranes being used for the development even where they would intrude into the airspace over the respondents' land. Initially at least there was good reason for it to believe that in respect of Frederick Peluso.
[28]
[4] On about 10 November 2003 Michael and Frederick Peluso met, among other people associated with the development, a Mr Tagell, the design manager for Abigroup Contractors Pty Ltd ("Abigroup") who were erecting the apartments for Lang Parade. The Peluso brothers had dealings with Mr Tagell on a number of occasions after that date. They were interested in being able to scavenge materials from the demolition of the existing buildings on the development site.
[29]
[5] On 19 January 2004 Frederick Peluso and Mr Tagell had another conversation in which Mr Tagell told Mr Peluso that there would be electric cranes on the site and a generator but that eventually the cranes would use mains power. His diary note of that conversation also records this note, "No worries with the crane provided we don't drop anything". In his second affidavit filed 18 January 2005 Mr Tagell said that he told Frederick Peluso in that conversation that the cranes "may" oversail either of the properties, that they were going to be electric which would cut down on noise and fume pollution and that it was a fundamental part of the operation of the crane that a load would not be carried over their property. At para 26 of the same affidavit he repeated that he told Frederick Peluso about the installation of the cranes and that they could potentially oversail the properties. His third affidavit was more definite about the issue of encroachment and said that he told Frederick Peluso on 19 January 2004 "in the plainest of terms" that the cranes "would" encroach on the air space above his properties.
[30]
[6] Mr Tagell's evidence was criticised because his third affidavit was more definite about what he said to Frederick Peluso than his second affidavit but his first affidavit sworn on 29 November 2004 was quite clear in para. 7(c): "Frederick Peluso said to me that he had was (sic) no worries with the cranes provided that we did not drop anything," in the context of a discussion about cranes "oversailing" the property. Nor is there any reason to doubt the accuracy of his contemporaneous diary note to the same effect. In my view the probabilities are that Mr Tagell told Frederick Peluso that the cranes would "oversail" the Peluso properties.
[31]
[7] There is no evidence that Michael Peluso was told that but it was also inherently probable that cranes for such a building site would intrude into the adjoining properties' airspace in any event. This must have been obvious to the Peluso brothers from early May 2004 when the first crane designed for the Linear East building was erected and commenced operation and from some time in July when the second crane was also erected. The evidence is not such as to allow me to conclude, however, that all the respondents, including Sheridan Peluso, a sister of Frederick and Michael, who lives outside Australia, had consented to, acquiesced in or waived any trespass over their properties by the cranes.
[32]
[8] The crane for Linear North does not enter the airspace for 355 Coronation Drive but, from time to time, when in operation, its jib encroaches into the airspace of 6 Lang Parade by up to approximately 8 metres in the northwest corner of the property as it swings around from picking up materials from the site's transfer area fronting Lang Parade to take those materials to Linear North. It may also encroach when not in operation: the crane is manufactured so that when it is not in use its jib can rotate freely if blown by the wind so as to avoid stresses to the tower structure that would occur were the jib fixed into position.
[33]
[9] The crane for Linear East, from time to time encroaches into the airspace of 6 Lang Parade: its jib by up to 9 metres in the northwest corner of the property and its counterdeck by about 5 metres or less in the southern corner of the property. It also encroaches into the airspace of 355 Coronation Drive by about 5 metres or less in the western corner of the property when in operation as the crane swings around from picking up materials from the transfer area fronting Lang Parade to take those materials to Linear East. When not in operation its counterdeck encroaches into the airspace of 6 Lang Parade and 355 Coronation Drive by about 5 metres or less in the southern and western corners of those properties respectively. Its jib encroaches over most of 6 Lang Parade and 355 Coronation Drive when not in operation as, like the other crane, it is manufactured so that the jib can rotate freely with the wind when not in use. These encroachments occur more than 25 metres above 6 Lang Parade and 355 Coronation Drive.
[34]
Allegations of trespass and negotiations for a licence
[35]
[10] Frederick Peluso gave evidence that he first went to see his solicitors in about May 2004 to seek redress for what he perceived to be the risks associated with the erection of the cranes. He said that his solicitor told him to take photographs and that he continued to take photographs for a significant period. No complaint was made to the applicant or anybody acting on its behalf, however, until the respondents' solicitors' letter of 10 September 2004 was sent to the lawyers for Abigroup asserting that the cranes were trespassing over the airspace of their clients' property, that they had never consented to or acquiesced in that trespass and requiring the applicant and Abigroup to cease to trespass either by removing the cranes or relocating them on the property where the development was being erected.
[36]
[11] Abigroup's solicitors, Clayton Utz, who now also act for the applicant, sent a letter to the respondents' solicitors, Redmond Law, dated 17 September 2004 addressing any safety issues they thought relevant to the complaints made in that firm's letter of 10 September 2004. They pointed out that no loads were ever carried over neighbouring properties or buildings, including the respondents' properties and provided a number of documents to them relating to the safety of the cranes and their methods of work. By a later letter of 24 September 2004 Clayton Utz referred to their client's right to seek a statutory right of user under s 180 of the Property Law Act1974 and sought to negotiate a right of access on reasonable and commercial terms.
[37]
[12] Redmond Law responded on 4 October 2004 rejecting the assertion that there were no safety issues, maintaining that the central issue was their clients' right to their own airspace and the trespass constituted by the applicant's builder's conduct. The letter went on to say:
[38]
"It is established law that where a land owner is seeking to effect a commercial development which is more profitable or less expensive if use can be made of airspace by an adjoining owner it is not unreasonable for the adjoining owner to require payment which bears some relationship to the financial gain or saving which the development land owner achieves by use of the airspace."
[39]
[13] The letter also sought an offer of compensation for the granting of airspace rights. The applicant initially offered the respondents $5,000 for the right for the applicant to continue any encroachment by the cranes. Its solicitors also referred the respondents' solicitors to a number of authorities dealing with relevant issues under s 180, including Re Roobottom (Supreme Court of Queensland; OS 6080 of 1998; Helman J, 17 July 1998, unreported) and 117 York Street Pty Ltd v Proprietors of Strata Plan No. 16123(1998) 43 NSWLR 504 and increased their offer to $16,250 on the basis of a claimed loss of rent of $8,250, reimbursement for estimated legal fees expended of $5,000 and payment for the inconvenience and expense of finding another tenant of $3,000. A tenant had left a unit in one of the respondent's properties but, as it transpired, for reasons not associated with the presence of the cranes on the adjoining site.
[40]
[14] That offer was responded to by a letter of 3 November 2004 from Redmond Law saying, amongst other things:
[41]
"Our clients have most emphatically not offered your client a right of access over their properties, rather my clients indicated through the writer that they would consider any requests by your client for a right of access if it was accompanied by an offer of compensation in the sum of $90,000."
[42]
[15] No basis for calculating compensation has been put forward by the respondents to justify the figure of $90,000. Nor has there been any open offer of access at a price that was able to be established in the evidence. Effectively, therefore, the respondents have continued to refuse access to the airspace above their properties.
[43]
[16] It became clear, however, during the evidence, that the respondents were seeking to obtain a commercial result measured at least in part by any savings the applicant may achieve by being permitted to trespass. In his evidence Mr Frederick Peluso suggested the sum of $160,000 as an appropriate figure. The most recent open offer of compensation by the applicant was $35,000 together with payment of the respondents' costs on the standard basis. That remained open for seven days after 12 January 2005. There has been no open counter-offer to the applicant's various open offers.
[44]
Are there practical alternatives to the imposition of an easement?
[45]
[17] Materials are delivered to the site via its Lang Parade frontage. It is a condition of the development approval that the site be accessed in this way. It is also impractical to use either the frontage to Coronation Drive or Dunmore Terrace as a delivery point and transfer area for materials.
[46]
[18] The evidence is clear that it would be difficult for Abigroup to construct the two towers without using the existing cranes. One possibility would be to use a large mobile crane and relocate it constantly on the site. This would be a difficult process because the site is confined and the towers are close to the boundaries.
[47]
[19] Although, upon construction of a ramp from Lang Parade, a mobile crane could be located in the space between the two towers, permitting the mobile crane to lift materials from the driveway to either tower, some loads, such as precast concrete panels, would exceed the capacity of the mobile crane both in respect of load weight and reach. To overcome these limitations, an additional crane or cranes would be required to be situated on the structure of the towers for work at higher levels; the mobile crane could lift materials to the edge of the tower and the crane situated on the building, a track crane, could then move the materials into position. A "Franna" crane would also be needed to lift materials off trucks and then drive materials to a location where they could be lifted safely by the mobile crane. This alternative construction process would significantly increase the cost and time of construction, with the additional expense almost certainly exceeding $1 million.
[48]
[20] Mr Barker, the crane expert appointed by the court to report on feasible construction methods that would not use cranes that would encroach upon the airspace above the respondents' properties, has not considered this first alternative of using mobile cranes. It is unlikely to be a viable alternative method of construction.
[49]
[21] The second alternative would be to use a "luffing" crane or cranes. However, a suitably sized luffing crane would be difficult to procure and, in any event, noise and pollution considerations make using a luffing crane undesirable in areas where neighbours are close by; which is the case for this site. It seems an impractical alternative. The respondents have not replied to an inquiry whether they would be satisfied with the use of a luffing crane.
[22] Section 180(1) of the Property Law Act1974 allows the Court to impose a statutory right of user on servient land in respect of other, dominant land where it is reasonably necessary in the interests of effective use in any reasonable manner of the dominant land. Such an order shall not be made pursuant to s 180(3), unless the court is satisfied that it is consistent with the public interest that the dominant land should be used in the manner proposed, the owner of the servient land can be adequately recompensed in money for any loss or disadvantage which the owner may suffer from the imposition of the obligation and the owner of the servient land has refused unreasonably to agree to accept the imposition of that obligation.
[52]
Reasonably necessary in the interest of effective use in any reasonable manner of the dominant land
[53]
[23] The applicant usefully and accurately summarised the relevant principles on this issue as follows:
[54]
(a) One should not interfere readily with the proprietary rights of an owner of land[1].
[55]
(b) The requirement of "reasonably necessary" does not mean absolute necessity[2].
[56]
(c) What is "reasonably necessary" is determined objectively[3].
[57]
(d) Necessary means something more than mere desirability or preferability over the alternative means; it is a question of degree[4].
[58]
(e) The greater the burden of the imposition that is sought the stronger the case needed to justify a finding of reasonable necessity[5].
[59]
(f) For a right of user to be reasonably necessary for a development, the development with the right of user must be (at least) substantially preferable to development without the right of user[6].
[60]
(g) Regard must be had to the implications or consequences on the other land of imposing a right of user[7].
[61]
[24] The two existing electric tower cranes cannot be positioned on the site so as to avoid encroachments into the airspace of neighbouring properties. Abigroup estimates that it will need the two existing tower cranes until the end of May 2005. The cranes are not used to carry loads over neighbouring properties and have been well maintained. Abigroup also maintains a policy of insurance with general liability coverage for a single occurrence of $50 million.
[62]
[25] The imposition of an easement in these circumstances will be temporary and unlikely to affect adversely the use of the respondent's land. If there were an accident affecting the respondents' land there is nothing to suggest that the applicant, supported as it is by a substantial insurance policy, would be unable to meet any likely losses suffered by the respondents. It would also be open to the court to require an indemnity to be offered by the applicant in return for the grant of the easement in respect of such potential losses.
[63]
[26] As I have discussed above it seems clear that the alternative means of constructing the buildings using a variety of other cranes or luffing cranes are impractical or unsuitable. Where, as here, the respondents have stood by in circumstances where one of them at least knew for a significant time that the cranes to be used would trespass over the respondent's land and consented to that occurring, and where the practical likelihood of that should have been obvious at a reasonably early stage to the other Peluso brother, it would be wrong to require a change to an alternative type of crane at this stage of the development.
[64]
Consistent with the public interest that the land should be used in the manner proposed
[65]
[27] It is consistent with the public interest that the land be developed by the construction of these two apartment blocks. Development approval has been obtained after an assessment by the Brisbane City Council. There were no submissions made opposing the development and the use of this type of crane to build the structures is appropriate given the matters to which I have already referred in respect of mobile cranes and luffing cranes.
[66]
Adequate recompense to the owner of the servient land
[67]
[28] This is the main issue in this litigation. The Act requires the court to be satisfied that the owner of the servient land can be recompensed adequately for any loss or disadvantage which the owner may suffer from the imposition of the obligation; see s 180(3)(b). Section 180(4) goes on to provide that an order under the section shall include provision for payment by the applicant of such amount by way of "compensation or consideration" as in the circumstances appears to the court to be just.
[68]
[29] That reference in s 180(4) to the words "or consideration" encouraged Mr Glenn Martin SC for the respondents to submit that the payment could be measured, not simply by assessing what was payable as compensation in the strict sense, but in a way that could extend beyond, for example, the diminution in the value of the land to include all factors of benefit or detriment on either side, such as any increase in the profitability of the applicant's commercial venture. He relied in particular upon a statement by DM Campbell J in Re Seaforth Land Sales Pty Ltd (No. 2)[1977] Qd R 317, 334:
[69]
"It is plain that the legislature intended that all the circumstances should be taken into account in arriving at the compensation or consideration, and not merely the diminution in value of the land. One circumstance is, of course, how the situation has come about to cause an application to be made under the section".[8]
[70]
[30] The applicant relied on statements in a number of decisions in New South Wales to the effect that the loss or disadvantage for which compensation is payable does not include the loss of the bargaining position that the owner of the servient tenement would have had if the section had not been enacted.[9] The applicant's submission was that what was required was a "causal relationship between the loss or disadvantage for which compensation is claimed and the imposition of the easement."[10]
[71]
[31] The applicant submits that the respondents were unable to point to any disadvantage caused by the temporary imposition of the right of user for the cranes beyond the loss of a tenant who, in fact, left for reasons not associated with the presence of the cranes.
[72]
[32] Nor could they point to any reason associated with loss or disadvantage which they might suffer that should enable them to share in any gains that the applicant might make through being able to use these cranes rather than adopting more expensive alternatives. The rationale adopted in the New South Wales decisions for refusing such compensation was expressed by Windeyer J in Goodwin v Yee Holdings Pty Ltd (1997) 8 BPR 15,795 at 15,801 as follows:
[73]
"He (counsel for the respondents) made his calculations in various ways but all referred to the additional cost of construction without the easement or the additional profit obtainable by reason of the easement apportioning this in some way between developer and servient owner. To put it simply, what this does is to compensate the servient owner for his loss of opportunity to extract money which would have been available had s.88K not been enacted. That is not the compensation to which ss.88K(2) and 88K(4) refers. Clearly what is to be compensated is the loss arising from the compulsory acquisition or imposition of the easement; that is the loss of property arising from the taking out of the freehold estate the incorporeal proprietary interest of the easement. It is not compensation to be equated with or apportioned out of the gain to the dominant owner as a result of the imposition."
[74]
[33] I do not believe that the use of the word "consideration" in the Queensland legislation in s 180(4)(a) should allow a significantly different approach from that adopted in New South Wales. In other words the adequate recompense meant for the adjoining owner should not be used as a means of a developer being held to ransom.[11]
[75]
[34] Nor does the behaviour of the respondents here encourage me to adopt such an approach in assessing the compensation or consideration that would be just for the purposes of s 180(4). At least in the case of Mr Frederick Peluso there had been apparent consent to the use of the cranes even if they did encroach on the respondents' properties' air space. Both brothers also permitted a significant delay to occur before they complained of the trespass after the stage in May when it should have become very obvious what was happening and likely to happen on the site. If alternative steps might have been taken by the applicant more cheaply had an earlier complaint been made there is little merit in compensating these respondents by reference to cost savings at this stage, well after the opportunity has passed for the applicant to consider alternative methods of construction.
[76]
[35] A more attractive approach to the assessment of compensation or consideration may be that expressed by Cooke P in Jacobsen Holdings Ltd v Drexel[12] where his Honour referred to the assessment of compensation by saying that it was the price that "willing parties would arrive at in friendly negotiation that has to be found, on such materials as are available," recognising that in many cases it might be a matter of considerable difficulty. Similarly in Attorney-General v Blake[13] there is some discussion by Lord Nicholls of Birkenhead of situations where there has been interference with property rights and where a strict application of the general rule, that the measure of damages should be the sum required to put the injured party in the same situation as he would have been had he not sustained the wrong, would not do justice between the parties. An example he gives is where a trespasser enters another's land causing no loss. In such a case, his Lordship said, "damages are measured by the benefit received by the trespasser, namely, by his use of the land ... In this type of case the damages recoverable will be, in short, the price a reasonable person would pay for the right of user."[14]
[77]
[36] In the absence of the statutory language, this restitutionary approach to the problem may have some merit in placing some of the focus on the position of the trespasser who may gain a significant benefit for little, if any, loss to the land owner. The trespasser/developer may well be prepared to pay more for the privilege because of the inconvenience it will save otherwise.[15] It seems to me, however, that there is sense in the approach adopted in New South Wales that the statute was not designed to compensate the servient owner for the loss of the opportunity to extract money which would have been available had s 180 not been enacted. Otherwise there would have been little point in the legislation. Its primary focus is on compensation or consideration for loss or disadvantage.
[78]
[37] The difficulty that also arises here in ascertaining the result of such a process stems particularly from the failure of the respondents to address the issue openly after the conversation between Mr Tagell and Mr Frederick Peluso on 19 January 2004. Where there has been an exercise of "salvage rights" by the Peluso brothers over the property demolished with the acquiescence of the applicant and there has been no significant threat from the applicant's activities to the value of the respondent's properties, it seems appropriate to assess the just compensation or consideration payable to the respondents at a low level. One can imagine if such negotiations had taken place at an early stage that they may have taken into account, apart from the likely return to the respondents from salvage of goods from the property, issues such as the provision of an indemnity against damage caused by the cranes, the respondents' fear that they may lose tenants and, no doubt, their need to seek legal advice about their rights.
[79]
[38] The brief period of any easement to be imposed and the absence of any likely loss suggest to my mind that the amount should be low. As I have indicated I do not think that it is correct to commence from the point of view that the likely saving to the applicant, estimated at $219,000.00, was an appropriate starting point to measure the recompense for loss or disadvantage or the compensation or consideration that would be just to pay to the respondents. In Re Roobottom referred to earlier, Helman J assessed the compensation for land affected by the permanent placement of rock anchors at $5,000.00 where his Honour thought that it was extremely unlikely that the respondent would suffer any loss or disadvantage from the imposition of the obligation. That was a permanent, if insignificant effect on the land.
[80]
[39] This application relates to a temporary effect which is also insignificant in the absence of damage to the property or the loss of tenants. The prospect of damage to the property can itself be provided for by the giving of an indemnity or the making of some similarly effective arrangement to bring this application back on if damage does occur. It would still, however, be a worrying prospect where any damage and inconvenience, if an accident did happen, may not be fully compensable monetarily.
[81]
[40] The prospect of loss of rental income may be an issue in some cases but does not seem to have been very significant here. In the circumstances it seems best to me to try to put oneself into the position of reasonable persons negotiating for the right of use of the air space trying their best to establish the amount of the consideration that will compensate the owner of the air space for any loss or disadvantage it may suffer by the trespass. In my view an appropriate figure here would be $20,000.
[82]
[41] In these circumstances, where the respondents have made no open offer and have refused access to their airspace after, initially, in Mr Frederick Peluso's position at least, giving permission, there seems no doubt to me that this requirement of the Act has been met, namely the respondents' refusal is unreasonable. They have made no offers themselves but merely intimated that they would consider an offer at a price which I regard as far too high and where there has been a significant delay between the time when it should have become obvious that a trespass would occur and the making of any approach by their solicitors. The respondents have also rejected further offers of compensation in amounts of $16,250, $30,000 plus costs and $35,000 plus costs.
[83]
[42] Accordingly, I propose to make an order in the terms sought by the applicant but shall hear further submissions about the form of order and as to costs.
[2]Re Seaforth Land Sales Pty Ltd's Land(No 2)[1997] Qd R 317 at 322 per Hanger CJ; Re Kindervater[1996] ANZ Conv R 331 at 333 per Derrington J; at 508 per Hodgson CJ in Equity; at 60,386 [18] per Wilson J; ; at 17,307 per Hodgson CJ in Equity; ; at 19,148 per Windeyer J; ; at 58,964-5 - per Macready M; ; at 124-6 - per Hamilton J.
[10]Mitchell v Boutagy[2001] NSWSC 1045; (2001) 118 LGERA 249 at 256 [26]- [33] per Austin J. The dictum of Young J in Wengarin Pty Ltd v Byron Shire Council at 16,989 [26] to the effect that there may be exceptional cases in which compensation is appropriately to be assessed by reference to a percentage of the profits to be made by the applicant was submitted to be incorrect and inconsistent with the approach to this issue since taken by Austin J. See also the earlier decision by Hodgson J, not in this statutory context, in , 507D-F.
[87]
[11] See Blulock Pty Ltd v Majic [2001] 10 BPR 19 143, 19 150 at [19].
[5]Katakouzinos v Roufir Pty Ltd[1999] NSWSC 1045; (2000) 9 BPR 17,303, 17,308 [42] per Hodgson CJ in Equity; Woodland v Manly Municipal Council[2003] NSWSC 392; (2003) 127 LGERA 120, 126-127 [12] per Hamilton J. For example, Katakouzinos involved the grant of a temporary easement for the purpose of scaffolding during construction.
[7]Nelson v Calahorra Properties Pty Ltdand Ors(1985) Q Conv R 54-202 at 57,342 per McPherson J, with whom Andrews ACJ and Demack J concurred; Re Hodgskin(1999) Q Conv R 54-535 at 60,386 [18] per Wilson J.
LJP Investments Pty Ltd v Howard Chia Investments Pty Ltd