THE CASE IN SUMMARY
1. A right of way through a property owned by German migrants was defined in the
property deed by means of a survey plan and exact detailed measurements.
2. One day, the user of the right of way trespassed onto the land at 5.30 in the morning
by pouring concrete mix on the way without the property owners' consent.
3. A representative of the Local Council watched the action and gave the go-ahead of
a huge reinforced concrete construction which:
· was in a environmentally protected area,
· was a massive structure that had the effect of acting as water dam so causing flooding
of the property,
· included a reinforced concrete water spillway encroaching more than 7 m onto the
owners' land beyond the boundary of the easement .
3. The work was carried out - with a Local Council representative attending the
construction work -
· in the absence of any Development or Building Application,
· without surveys, plans or any other form of written documentation,
· against the will of the protesting property owners.
In extensive negotiations the property owners tried to resolve the matter with the
trespassing party and the local council. Because the work was on their land in an
environmentally protected area they were in NSW law liable for it. When the work
continued and the council refused to answer the questions regarding the absence of any
Building or Development Applications (BA & DA) the property owners had no other
option than to instruct a solicitor to take action to have the illegal work stopped and
removed from their land.
The solicitor filed the claim in the wrong court, the Equity Division of the Supreme
Court, which has no jurisdiction in planning laws, environmental laws or the Local
Government Act. Because of that the council was discharged from the proceeding and
the property owner had to pay the costs for this exercise.
4. The solicitor compromised the proceedings against the trespasser when he advised
the property owners to agree to a settlement by which the encroachment would be
removed from their land. The solicitor advised that they should pay their own cost and
he would recover these cost and damages by the action against the council.
5. The trespasser refused to remove the structure as agreed and when the property
owners removed it they were taken back to the Supreme Court by the trespassing
party for breach of contract. In court the trespasser insisted that the property owners
had agreed to have the illegal structure on their land.
6. The special investigation department from the Local Government visited the site but
was unable to answer the question whether BA & DA approval were necessary to
carry out a waterway/dam construction in an environmentally protected waterway on
someone else's land.
7. The property owners dismissed their solicitor and represented themselves in the
direction hearing before the court. They asked for leave to file proceedings in the
correct court, the Land & Environment Court, because Council had refused to deal
with the matter and the Supreme Court had no jurisdiction to order the reinstatement of
an illegally built structure onto someone else's land which was under environmental
8. The Supreme Court of NSW rejected having the matter dealt with in the right court
and ordered a hearing of the matter for the following week.
The matter was continuously before the court because the judge failed to make orders.
After one year the judge handed the matter over to another judge.
9. The property owners meanwhile had engaged another solicitor who advised that
engineers should try to find a solution for the construction issue. Engineers from both
sides met and they reported some ideas as a proposal in "Minutes of Meeting".
Drawings or plans were not in existence at that time and it turned out that the proposed
construction would not work because the engineers had failed to investigate the site
The property owners filed their appeal against the first judgment. Meanwhile a further
hearing took place on the court below with another judge who was to determine the
fate of the structure. The judge was furious, did not want to make the order and
wanted the matter to be settled. The Supreme Court of NSW has no jurisdiction over
these statutory laws and therefore could not make an order that the work in the
proposal had to be carried out.
10. The property owner's solicitor and the engineer now insisted that the proposal
could probably work with some amendments. The engineers of both parties attended a
hearing and negotiations took place whether the construction of the causeway could be
contained within the easement. After enormous pressure from their legal representatives
the property owners agreed that the proposal could be explored.
This was a proposal that was subject to council approval. There were no plans or
specifications in existence. To gain approval from the proper authorities was highly
unlikely because the work was to be carried out in a waterway protected by legislation.
11. New plans and specifications were drafted and then signed by an engineer who
had no authority to sign any documents on behalf of the property owners. These plans
showed an encroachment of more than 9 meters. The property owners requested that
the plans to be amended.
12. The matter went back to court and the court found that the proposal was an
agreement and that the proposal had to be built regardless of the fact that the
encroachment issue of the previous judgment was to be challenged in the Court of
13. The trespasser and the council refused to prepare the required development
application for the huge development in a protected waterway. The property owners
challenged the matter in the Land & Environment Court. The trespasser admitted that
the previous structure would have needed a Building Application and the Court
decided that a Development Application was necessary. The judgment says both, the
council and the trespasser deny that they have any intention to widen the 6m wide
14. The court signed the Building and the Development Application and by that gave
500 (five hundred) square metres of the owner's land to the trespasser for the use of a
road. The road width was 40 (forty) metres.
15. In the meantime the Court of Appeal criticized the previous judge and found that
the neighbour contravened the previous agreement when he exceeded the width of the
easement (6 m)
16. Despite this court ruling the local council approved and so legalised the
construction of a 40 m wide road.
17. When the property owners requested the Supreme Court of NSW to determine
whether a judgment from the Appeal court would supersede a judgment of the
Supreme Court the judge went wild. The property owners represented the case
themselves and when one of them collapsed in Court the judge refused medical
18. The trespasser - a mechanical engineer - announced himself to be the
superintendent of the environmental and construction work and started to build anyway
and so butchered the environment.
19. On a Friday 9:30 p.m. the property owners were served with a court order which
threatened them with imprisonment and property sequestration should they not comply
with that order. The property owners found out that there had been a hearing in the
Supreme Court of NSW without them ever being informed. The trespasser successfully
claimed in court that the property owners had agreed that they would prepare for him a
turning circle (approx. 200 square metre) for large trucks and construction vehicles on
another part of their land. The court made an order, which forced the owners to
prepare such turning circle and to remove part of their own road including their road
embankments and plants outside of the easement on their land far away from the
20. The property owners received a letter saying that the work had been finished and
they thus reinstated their road and embankment. But then council did not agree that the
work had been done to council satisfaction and requested that environmental repair
work also be carried out.
21. The trespasser asked the Court that the property owners be imprisoned until he
had completed his work, their property sequestrated and an order made that they
reinstate the 200 square metre turning circle for large trucks and construction vehicles
on their land. The court ordered that the property owners had to reinstate the turning
22. The property owners filed damage proceedings against 2 solicitors, the trespasser,
and the engineer who had signed documents without their authorisation and against the
council for damages and compensation.
23. The trespasser agreed that both parties would have their costs assessed but then
claimed that by agreeing to have costs assessed it implies that the costs have to be paid
forthwith. The Court agreed.
24. When evidence was presented that the trespasser had committed perjury the court
took no action, and indeed would not even take any notice of the fact.
25. The property owners lost their business and had to sell their only asset left, their
home devalued in a rapid sale because the neighbour trespasser threatened them by
starting bankruptcy proceedings.
26. The German migrants have lost everything, their family broke apart and they have
no belief left in a fair and democratic Australia. They experienced the reality of a
country where human rights are violated and no rule of law exists.