Nicholas Van Beek v Olivia Lou (No 3)

Hearing dates: 9 February 2026

Date of orders: 9 February 2026

Decision date: 09 February 2026

Jurisdiction: Class 3

Before: Pepper J

Decision: Application to vacate the hearing dismissed. Each party to bear their own costs of the vacation application.

Catchwords: PROCEDURE: the applicants seek to vacate part-heard encroachment proceedings to permit an application to be made to NSW Land Registry Services to determine a plan of delimitation – opposed by respondents – respondents not legally represented – expert surveying evidence relied upon by the parties is to the effect that there is no encroachment by the respondents on the applicants’ land – delay in lodging plan by applicants – no real prejudice to applicants if vacation not permitted – respondents seek to have the matter determined to finality – neither just, nor quick or cheap to grant the vacation – application denied – each party to pay their own costs of the motion.

Legislation Cited: Civil Procedure Act 2005, ss 56, 57, 58(1), 58(2), 66(1)

Cases Cited: Jiang v Sydney Metro [2023] NSWLEC 126
RD Miller Pty Ltd v Roads and Maritime Services NSW (No 2) [2019] NSWLEC 141
UTSG Pty Ltd v Sydney Metro (No 5) [2019] NSWLEC 107
Van Beek v Lou [2025] NSWLEC 21
Van Beek v Lou (No 2) [2025] NSWLEC 128

Category: Procedural rulings

Parties: Nicholas Van Beek (First Applicant)
Diana Rosemary Van Beek (Second Applicant)
Olivia Lou (First Respondent)
Yi Kun Lou (Second Respondent)

Representation: Counsel:
C Koikas (First and Second Applicant)
H Yuan (Agent) (First Respondent)
Y Lou (In person) (Second Respondent)
Solicitors:
Finn Roache Lawyers (First and Second Applicant)
N/A (First Respondent)
N/A (Second Respondent)

File Number(s): 2024/283555

Publication restriction: Nil

EX TEMPORE JUDGMENT

The Van Beeks Seek to Vacate a Part-Heard Hearing

1. The applicants, Nicholas Van Beek and Diana Van Beek (“Van Beeks”), apply by way of notice of motion filed on 6 February 2026, to vacate the part-heard hearing of their matter listed to resume on 11 February 2026.

2. The application was supported by an affidavit of Thomas Bassil, sworn 6 February 2026. Bassil is the Van Beeks’s solicitor.

3. The substantive proceedings concern an alleged encroachment by the respondents, Olivia Lou and Yi Kun Lou (“Lous”), onto the Van Beeks’s land. The Van Beeks’s land is at 12 Short St, Forest Lodge. The Lous’s land is at 16 Short St, Forest Lodge. The parties share a common boundary.

4. The background to the proceedings is set out in Van Beek v Lou [2025] NSWLEC 21 and Van Beek v Lou (No 2) [2025] NSWLEC 128, and is relied upon here absent repetition.

5. In short, the Van Beeks allege that an approximately 1.669 m2 portion of the Lous’s dwelling and shed encroaches onto their land at the rear of their property. They initially relied upon two surveys prepared by a now retired surveyor, Stephen Carr, on 16 March 2021 and 9 February 2022, respectively. Carr did not give evidence in these proceedings.

6. The encroachment is said to have arisen as a result of alteration works undertaken in 2003 and 2004 by the Lous pursuant to a development consent granted by Leichhardt Municipal Council on 27 November 2002.

7. The Class 3 application seeks the following relief:

1. A declaration that the respondents wall at 16 Short Street, Forest Lodge, NSW 2037 encroaches into the applicant’s land, 12 Short Street, Forest Lodge, NSW 2037.

2. The Respondents pay the Applicants compensation in the sum of $57,567.00 in accordance with section 4(1) of the Encroachment of Buildings Act 1922.

3. In the alternative, an order that the respondent is to remove the encroaching wall insofar as it encroaches into the Applicant’s land and make good the Applicant’s land to the condition it was in prior to the erection of the encroaching wall.

4. Such further or other orders as the Court sees fit.

5. Costs.

8. The vacation application is opposed by the Lous, who have expressed a strong desire to bring the proceedings to finality.

9. Undoubtedly, the Lous are partly motivated in their opposition to the motion by the fact that the expert surveying evidence presently before the Court appears (final submissions have not been made, I caution) to indicate that there is no encroachment by them onto the Van Beeks’s land.

10. In order to understand the above statement, it is necessary to detail the surveying evidence filed by the parties in the matter:

(a) on 18 December 2025 the Van Beeks read an affidavit of Stewart Dixon, sworn 17 November 2025, wherein Dixon deposed to having made inquiries of NSW Land Services Registry (“LRS”) and to having obtained the deposited plans indicating the boundaries of the relevant properties. On 4 November 2025 he prepared, but did not lodge, a plan of delimitation in respect of the boundary between the two properties; (b) the Lous relied on the expert report of Jonathan Saxon dated 8 December 2025. Saxon conveniently set out the background to the dispute, which for the purpose of the present vacation application, is accepted by the Court:

5. Number 16 Short Street, Forest Lodge is Lot 1 in Deposited Plan (DP) 197333 (No 16).

6. Number 12 Short Street, Forest Lodge is Lot 1 in Deposited Plan 799557 (No 12).

7. Both Number 12 and Number 16 were originally part of a larger Old System Parcel, and their respective Deposited Plans have been prepared to convert the land to Real Property Land under part 4A and 4B of the Real Property Act.

8. Both titles contain a limitation warning that the boundaries of the land have not been investigated.

9. The Lous are the registered Proprietors of Lot 1 in Deposited plan 197333 (Number 16 Short Street).

10. In 2023, the Lous engaged David Jackson, a Registered Land Surveyor to prepare a plan to remove the limitation recorded on their title and define the boundaries of their land.

11. David Jackson prepared the required plan dated 4 May 2023 which is intended to be registered as DP1295976 (the Jackson plan).

12. The Jackson plan has been lodged with NSW LRS for registration and has been examined. Requisitions were raised and satisfied excepting a requisition requiring consent of the neighbour to the north west in respect of the common boundary.

13. The adjoining property to the north west is number 12 Short Street, Forest Lodge which is Lot 1 in Deposited Plan 799557. The title to this land records Nicholas Van Beek and Diana Rosemary Van Beek ("the Van Beeks") as owners as joint tenants.

14. Consent of the neighbours (Van Beeks) has not been forthcoming and the Jackson plan has not been registered.

15. In August 2024, proceedings were commenced in the Land and Environment Court alleging that the boundary wall at No 16 encroaches onto the land at No 12. In those proceedings reliance has been placed on a 2021 set-out sketch prepared by Mr Stephen R Carr, which does not purport to be a boundary survey.

16. The Van Beeks engaged Stewart Dixon, a registered land surveyor to prepare the plan of delimitation as provided in Mr Dixon's affidavit dated 17 November 2025.

17. Stewart Dixon prepared the required plan dated 4 November 2025 which has not been allocated a Deposited Plan number by NSW LRS. The plan is in a form suitable to be lodged for registration (the Dixon Plan).

18. The Jackson plan and the Dixon plan do not form a common boundary with each other.

19. The Van Beeks made application to the Office of the Registrar General (ORG) in 2025 for a Boundary Determination under section 135B of the Real Property Act 1900. The Registrar General refused to consider the application because both parcels are limited title and the documentary boundary is the common boundary established by the old system deeds on which DP79987 and DP197333 are based - letter from ORG to Van Beek (AV68090).

(c) the plan by David Jackson reflects the current boundaries of the land, whereas the Dixon plan of delimitation shows the location of the deed boundary in relation to the existing structures on the land. According to Saxon, the deed descriptions for both properties are not representative of the boundaries of the land, rather the true boundary between 12 and 16 Short St is best represented by what is depicted in the Jackson plan. This means that, according to Saxon, there is no encroachment; (d) a joint report by Dixon and Saxon dated 8 December 2025, agreed that the Jackson plan reflected the location of the true boundary between the lands. That is, there is no encroachment; (e) upon agitation from the Van Beeks, a supplementary report dated 16 December 2025 was prepared by Dixon and Saxon, wherein the surveyors were asked to assume the following things:

a. That the parties’ land is Torrens and not old system land; and

b. That to the extent there are encroachments from the respondents land into the applicants land, those encroachments did not result in adverse possession of part of the applicants land.

c. To the extent the exercise in (1) and (2) above results in the respondents buildings encroaching into the applicants land the surveyors are to confer in relation to the extent of the encroachment, if any in square metres.

(f) again, the conclusion of the surveyors was that “there is NOT any encroachment by either party onto the other party in this case for the reasons set out in this supplementary report, and in our joint report”.

11. During the hearing, the surveyors gave oral evidence. Suffice it to say that they did not resile in any material way from the view expressed by them in their joint reports with respect to where the true boundary was located and whether or not there was an encroachment. The surveyors were excused upon the conclusion of their evidence.

12. The matter did not conclude in the two days allocated to it. In this regard, it should be noted that the Lous are not legally represented and that English is their second language.

13. What remained of the hearing was the presentation of valuation evidence and the parties’ closing submissions. Accordingly, on 18 December 2025 the matter was set down for a resumption of the part-heard hearing on 11 and 12 February 2026. The parties were urged to resolve the matter over the law vacation absent further curial intervention.

14. This did not occur. Rather, on 5 February 2026, the Van Beeks exercised the parties’ liberty to restore and informed the Court that Dixon had been instructed (“despite” his advice, the Van Beeks had “insisted” that this occur, that is, according to Dixon in his letter to the LRS dated 22 January 2026) to lodge the plan of delimitation prepared by him on 4 November 2025 with the LRS.

15. The LRS responded on 5 February 2026, informing the Van Beeks of five requisitions, including that it was awaiting the Court’s decision on the parties’ boundary determination. Because all of the other requisitions are able to be attended to, the Van Beeks informed the Court that they intend to write to the LRS again, requesting that it accept Dixon’s delimitation plan and that the current Court proceedings are no bar to it doing so. The Van Beeks foreshadowed an application to vacate the remaining listing of the proceedings to allow this process to be completed.

Legal Principles to be Applied Regarding the Vacation of the Hearing Dates

16. The relevant legislation and legal principles governing applications to vacate hearings, including those that are part-heard, are well known. They were expounded by the Court in UTSG Pty Ltd v Sydney Metro (No 5) [2019] NSWLEC 107 (at [35]-[40]), and were endorsed in RD Miller Pty Ltd v Roads and Maritime Services NSW (No 2) [2019] NSWLEC 141 (at [28]-[30]). More recently, in Jiang v Sydney Metro [2023] NSWLEC 126 the Court restated them as follows (at [43]-[48]):

43 In relation to the vacation of hearing dates, s 66(1) of the Civil Procedure Act 2005 (NSW) (CPA) provides that:

66 Adjournment of proceedings

(1) Subject to rules of court, the court may at any time and from time to time, by order, adjourn to a specified day any proceedings before it or any aspect of any such proceedings.

44 Section 56 provides in relation to the override purpose of the CPA:

56 Overriding purpose

(1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

(2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule.

…

45 Section 57 provides in relation to the objects of case management as follows:

57 Objects of case management

(1) For the purpose of furthering the overriding purpose referred to in section 56(1), proceedings in any court are to be managed having regard to the following objects—

(a) the just determination of the proceedings,

(b) the efficient disposal of the business of the court,

(c) the efficient use of available judicial and administrative resources,

(d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties.

(2) This Act and any rules of court are to be so construed and applied, and the practice and procedure of the courts are to be so regulated, as best to ensure the attainment of the objects referred to in subsection (1).

46 Section 58(1) of the CPA states that in deciding “whether to make any order of direction for the management of proceedings, including…(ii) any order granting an adjournment or stay of proceedings…the court must seek to act in accordance for the dictates of justice”. Subsection (2) provides:

(2) For the purpose of determining what are the dictates of justice in a particular case, the court—

(a) must have regard to the provisions of sections 56 and 57, and

(b) may have regard to the following matters to the extent to which it considers them relevant—

(i) the degree of difficulty or complexity to which the issues in the proceedings give rise,

(ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities,

(iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties,

(iv) the degree to which the respective parties have fulfilled their duties under section 56 (3),

(v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings,

(vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction,

(vii) such other matters as the court considers relevant in the circumstances of the case.

47 The principles that apply to an application to vacate were summarised by Ward JA in Kenoss Pty Ltd v Palerang Council (Kenoss), where her Honour said at [13]:

13. The power to adjourn proceedings or vacate hearings in s 66 of the Civil Procedure Act 2005 (NSW) confers a discretion that must be exercised in accordance with the overriding purpose described in s 56(1) of the Civil Procedure Act and in accordance with the dictates of justice as described in s 58 of that Act. The considerations that must be taken into account include: the prejudice to the respondent by such an adjournment; the prejudice to the applicant if such an adjournment is refused; the circumstances in which the application is brought; and considerations relating to the administration and management of matters in this Court.

48 In RD Miller Pty Ltd v Roads and Maritime Services NSW (No 2) (RD Miller), Robson J said at [29] to [30]:

29. Briefly stated, the power to vacate the hearing pursuant to s 66(1) of the Civil Procedure Act 2005 (NSW) (‘CPA’) must be exercised by reference to (inter alia) the considerations in ss 56, 57 and 58 of the CPA: Ren v Jiang (No 2) [2014] NSWCA 119 at [5].

30. The Court should not readily accede to applications to vacate because “the public interest in the efficient dispatch of the business” of a court affects a number of litigants that have already been forced to wait by reason of the listing of the matter: Majak v Rose (No 6) [2017] NSWCA 262 at [18].

The Vacation Application is Dismissed

17. Having regard to the circumstances and principles set out above, the Court declines to exercise its discretion to vacate the part-heard hearing. This is because:

(a) first, as the Lous submitted, the plan of delimitation could have been lodged much earlier to the LRS by the Van Beeks, namely, in November 2025, in order to resolve the proceedings. This did not occur and instead the Van Beeks sought to pursue and to continue these encroachment proceedings with all of their attendant costs; (b) second, the finalisation of the proceedings ought not be further delayed to the detriment of the Lous in order to afford the Van Beeks the opportunity of potentially obtaining a different boundary outcome to that identified in the surveying evidence, in circumstances where this evidence appears, at this stage, to be problematic for them. While the Court is cognisant that this is a Class 3 merit matter, there is nevertheless a limit as to how much time the parties can be afforded in order to finalise their evidence; (c) third, the LRS has expressed a desire to have the Court, and not it, determine where the true boundary between the two properties is located. To adjourn the proceedings further is therefore apt to be futile and only result in wasted delay; (d) fourth, during the course of the vacation application hearing, Chris Koikas, counsel for the Van Beeks, stated that the Van Beeks would not suffer any significant prejudice if the hearing was not vacated; (e) fifth, the position of the Van Beeks may be contrasted with the Lous, who state that the proceedings are causing them considerable anxiety and stress, especially given their protracted nature. In this context, it is noted that the Lous have acted with diligence in the preparation of the matter to date and have not engaged in any delay; (f) sixth, contrary to the submission by Koikas, the Court’s resources will have been wasted if the hearing is vacated. The Court will not be able to list a matter to fill the vacancy created by the adjournment. That I am presently duty judge does not ameliorate this situation. In this Court, at least, the duty judge is routinely listed to hear other cases in addition to any urgent matters; and (g) seventh, it is somewhat trite to observe that vacated hearings are typically attended by increased costs. These are costs that will be borne, in this instance, by the unsuccessful party to the proceedings, given that these suits attract the usual rule as to costs notwithstanding that they are proceedings in Class 3 of the Court’s jurisdiction. If the Lous are ultimately unsuccessful in defending the matter, these increased costs will presumably be passed onto them. Moreover, there was no agreement by the Van Beeks to forego the costs associated with the surveying evidence that would be thrown away by any determination of the true boundary between the properties by the LRS. Again, if successful, these are costs that the Van Beeks are likely to seek compensation for from the Lous.

18. For these reasons, to accede to the vacation application at this late stage given the imminent resumption of the hearing of the matter would not, in my opinion, facilitate the overriding purpose of the just, quick and cheap resolution of the proceedings.

Orders

19. The application is dismissed. Each party is to pay their own costs of the vacation application.

**********

Amendments

11 February 2026

Delete the words "before the Court" from the catchwords on the coversheet