Roads and Maritime Services v Young

JudgmenT

1. This is an application by the plaintiff for the costs of removal of a houseboat that was until 25 March 2020 moored over a rectangular area of the seabed in Pearl Bay on Middle Harbour. The relevant area is to the north-west of the shoreline, with its south-eastern boundary parallel to the shore at a distance of about 8 m out. The area is comprised in folio identifier 1/1146276. The defendant kept the houseboat moored at this location and occupied it as her residence pursuant to a lease of the seabed from the plaintiff.
2. On 13 August 2018 judgment was entered for the plaintiff for possession of the property. The Court's reasons were published on 13 August 2018: Roads & Maritime Services v Young [2019] NSWSC 1014. For a considerable time the defendant had not paid rent that was due to the plaintiff in respect of the leased area. The lease was therefore determined. On 30 September 2019 judgment was entered in the plaintiff's favour for $6,075.44 for rent plus $9.66 for each day after 30 September 2019 until possession should be recovered. On the same day an order was made that the defendant pay the plaintiff's costs of the proceedings.
3. Clause 13 of the lease contains the following provisions: 13.1 Removal of Lessees Fixtures by Lessee (a) If notified by the Lessor in writing the Lessee must, at the Lessees cost, Remove the Lessee's Fixtures from the Leased Land and Licensed Area upon the expiration or earlier determination of this Lease […] 13.3 Failure to Remove Improvements and Fixtures If the Lessee does not comply with cl 13.1 […] of this Lease then: (a) the Lessor may Remove or partially Remove and dispose of the […] Lessee's Fixtures on the Leased Land and Licensed Area in such manner and on such terms as the Lessor determines, acting reasonably; and (b) the Lessee must pay to the Lessor on demand the costs and expenses incurred by the Lessor in taking action under cl13.3(a) of this Lease
4. The term "Lessee's Fixtures" is defined Sch 1 of the Lease to include "pontoons". The defendant's houseboat comprised a dwelling constructed on a floating concrete pontoon. On 14 November 2019 the defendant was notified by the plaintiff in writing that she should remove her chattels from the houseboat and that it would be removed from the site if the defendant herself took no action to remove it. In this same letter of notification the defendant was directed to disconnect electricity and water from the houseboat and to remove all mooring blocks and chains. The plaintiff offered that it would have the houseboat towed to a location nominated by the defendant, at her cost. The defendant did not take up this offer and took no steps to disconnect services or to remove the houseboat from its moorings.