Encroachment Proceedings in the Land and Environment Court: When Does a Transfer to the Supreme Court Become “More Appropriate”, and When Should a Stay Follow?

Based on the authentic Australian judicial case Van Beek v Lou [2025] NSWLEC 21, this article disassembles the Court’s judgment process regarding evidence and law. It transforms complex judicial reasoning into clear, understandable key point analyses, helping readers identify the core of the dispute, understand the judgment logic, make more rational litigation choices, and providing case resources for practical research to readers of all backgrounds.

Chapter 1: Case Overview and Core Disputes

Basic Information

Court of Hearing:

Land and Environment Court of New South Wales

Presiding Judge:

Pepper J

Cause of Action:

Notice of motion seeking transfer of Class 3 proceedings to the Supreme Court of New South Wales under s 149B of the Civil Procedure Act 2005 (NSW), and a stay pending that transfer; the substantive proceedings concern alleged encroachment relief under the Encroachment of Buildings Act 1922 (NSW)

Judgment Date:

19 March 2025 (orders made 18 March 2025)

Core Keywords:

Keyword 1: Authentic Judgment Case
Keyword 2: Transfer of proceedings
Keyword 3: Stay of proceedings
Keyword 4: Encroachment of Buildings Act 1922 (NSW)
Keyword 5: Land and Environment Court jurisdiction
Keyword 6: Case management justice and efficiency

Background

Two neighbouring landowners are in dispute about a built structure said to cross the boundary. The Applicants say a wall built on the Respondents’ property projects into the Applicants’ land by a small but legally significant area. The Applicants commenced Class 3 proceedings in the Land and Environment Court seeking relief that commonly arises when a building encroaches across a boundary: a declaration, compensation, or removal and rectification.

Before any final hearing of the substantive claim, the Respondents, acting without legal representation, asked the Court to move the case to the Supreme Court. They argued the dispute was “more complex” than a simple encroachment claim, and contended there were additional property issues in the background. The Court was required to decide whether, as a matter of statutory discretion and practical justice, the case should be transferred, and whether the proceedings should be paused while that occurred.

Core Disputes and Claims

The motion raised two tightly framed procedural questions:

1. Transfer question: Is it more appropriate for the encroachment proceedings, as presently constituted, to be heard in the Supreme Court rather than the Land and Environment Court, within the meaning of s 149B of the Civil Procedure Act 2005 (NSW)?

2. Stay question: Should the proceedings be stayed pending the proposed transfer?

The parties’ positions, in substance, were:

• Respondents (moving party): sought transfer to the Supreme Court on the basis of asserted complexity and the existence of other property-related issues; sought a stay pending transfer.
• Applicants (opposing party): opposed transfer and sought to retain the allocated final hearing date; opposed any stay that would delay the proceedings, particularly given they had complied with timetabling directions and filed their evidence.

Chapter 2: Origin of the Case

Content

At the centre of the dispute is adjoining residential land. The Applicants and Respondents each own a neighbouring property sharing a contiguous boundary line. Around 2003 or 2004, the Respondents carried out alteration works to their home as owner-builders. The Applicants allege that during those works the Respondents erected a solid wall without eaves that projects over the boundary and occupies approximately 1.7 square metres of the Applicants’ land.

In everyday terms, boundary disputes often begin quietly: the structure is built, the neighbours live alongside it, and only later does the legal significance crystallise. A wall that “hangs over” or “sits into” the neighbouring land can interfere with use, future building plans, maintenance access, drainage, and the market value of the affected land. Even where the encroached area is numerically small, the principle is not: Australian property law treats boundaries as legally strict, because certainty of title underpins the stability of land ownership.

The Applicants commenced Class 3 proceedings in the Land and Environment Court seeking remedies provided by statute for building encroachments. The relief sought included compensation assessed in money terms (claimed at AUD $57,567), and an alternative remedy requiring removal of the encroaching portion and restoration of the Applicants’ land.

Detail Reconstruction

The legal relationship between neighbours is rarely created by contract; it is created by adjacency and by the physical reality of land. Financial interweaving arises indirectly: the cost of building works, the cost of remediation, the cost of surveys, and the cost of litigation. The conflict tends to escalate in stages:

• A concern is raised about where the boundary truly lies.
• Technical material becomes central: plans, surveys, measurements, and the physical footprint of structures.
• The parties’ positions harden because each option carries cost: compensation feels like paying for land already “owned”, while removal feels like demolition for something built years ago.
• The dispute becomes procedural as much as substantive: timetables, evidence, and which court will hear the matter can materially affect outcome and cost.

Conflict Foreshadowing

The decisive procedural moment in this case was not a physical confrontation at the boundary, but the filing of the notice of motion. Once a final hearing date is allocated, a late attempt to transfer proceedings can operate as a litigation lever: it may delay the final hearing, disrupt timetables, and increase costs. The Court was required to assess whether the transfer request was genuinely necessary for justice, or whether it would be inefficient and unjust in the context of existing case management orders and party compliance.

Chapter 3: Key Evidence and Core Disputes

Applicants’ Main Evidence and Arguments

Because the judgment concerns a procedural motion rather than the final merits hearing, the “evidence” at this stage is largely procedural and documentary. The Applicants’ position depended on demonstrating that:

• The proceedings were properly commenced in the Land and Environment Court as Class 3 encroachment proceedings.
• The statutory scheme specifically allocates this kind of matter to that Court.
• A final hearing date had been set and preserved, and the Applicants had complied with timetabling directions by filing and serving their evidence.
• Transfer would disrupt the allocated hearing date and impose inefficiency and injustice.

In practical terms, the Applicants’ litigation narrative at this stage is: the case is already on track; the specialist court with the statutory mandate is ready to hear it; a transfer would cause delay and waste.

Respondents’ Main Evidence and Arguments

The Respondents, self-represented, argued that the dispute should be transferred because it was complex, asserting that additional issues existed beyond the encroachment question, including:

• An easement dispute
• Boundary determination issues
• Alleged infringement of common law property rights

They also relied on the passage of time since the works were undertaken, pointing to the fact that the wall was built more than two decades earlier.

Notably, the Court treated the proceedings “as presently constituted”: the only pleaded claim before the Court was the encroachment claim, and no formal boundary determination application had been lodged.

Core Dispute Points

1. The proper forum: Whether the Land and Environment Court, as the court named within the statutory scheme, should retain the matter.
2. Scope of the actual case: Whether alleged “extra issues” were truly part of the proceedings, or merely background contentions not formally brought before the Court.
3. Practical justice: Whether transfer would save time and cost, or instead create delay, inefficiency, and unfairness given the stage of the proceedings.
4. Stay necessity: Whether any stay could be justified once the transfer request failed, or on any alternative legal basis.

Chapter 4: Statements in Affidavits

Content

This judgment does not set out contested affidavit accounts in the way a final merits judgment often does. The motion was decided principally by reference to statutory jurisdiction, procedural history, and the structure of the pleadings. Nonetheless, it is useful to understand how affidavits usually operate in this kind of case, because the procedural posture influenced the Court’s approach.

In contested encroachment matters, affidavits typically do two things:

• Fix the physical facts: measurements, diagrams, surveyor opinions, and photographs that show precisely where the structure sits in relation to the boundary.
• Frame discretionary factors: loss and damage, the circumstances of construction, and the comparative prejudice of removal versus compensation.

Here, the Applicants had filed and served their evidence in accordance with court orders. The Respondents had not done so, and were in breach of timetabling orders. That asymmetry matters procedurally: a party seeking a discretionary case-altering order (like transfer and stay) while itself not complying with existing directions faces an uphill task when the Court is applying the overriding purpose of just, quick, and cheap resolution.

Strategic Intent

The Court’s procedural directions about evidence and timetabling served a clear strategy: to prepare the matter for a final hearing date already allocated. In that context, a transfer application that would likely result in:

• a new timetable,
• a re-listing process,
• and a loss of the imminent final hearing date,

had to be assessed against the practical justice of keeping the case on track in the specialist court.

Chapter 5: Court Orders

Content

Before the motion was heard, the Court had made key case management arrangements, including:

• Listing the substantive proceedings for final hearing on a specified date.
• Making orders requiring the filing and serving of evidence by each party.
• Establishing a timetable designed to ensure readiness for the final hearing.

After the motion, the Court:

• Dismissed the notice of motion seeking transfer, and ordered costs of the motion to be costs in the cause.
• Made consequential timetabling orders preserving the allocated final hearing date, with the parties’ consent.

These orders reflect an important judicial priority: maintaining the integrity of case management in a specialist jurisdiction, particularly where one party has complied with directions and the matter is near-ready for final hearing.

Chapter 6: Hearing Scene: Ultimate Showdown of Evidence and Logic

Perspective

Strict, objective Third-Party Perspective.

Process Reconstruction: Live Restoration

This was not a trial with witnesses being cross-examined on disputed facts. It was a contested motion hearing focused on forum, jurisdiction, and case management justice. The “showdown” was therefore one of legal framing and procedural logic.

The Respondents presented their case as one of complexity: the dispute, they said, involved more than encroachment. The Applicants resisted that reframing, focusing the Court’s attention on the pleaded case and the statutory path chosen.

A critical turning point was the Court’s insistence on identifying the proceedings “as presently constituted”. The Court treated assertions of other disputes as, at best, potential future issues, not presently pleaded claims capable of driving transfer.

Core Evidence Confrontation

The most decisive “evidence” confronting the transfer application consisted of:

• The statutory definition of “Court” under the Encroachment of Buildings Act 1922 (NSW).
• The statutory conferral of exclusive jurisdiction to the Land and Environment Court for relief under that Act.
• The procedural timeline: final hearing date set; Applicants’ evidence filed; Respondents’ evidence not filed.

In practical terms, the Respondents’ claim of complexity could not overcome the legislative architecture that intentionally placed encroachment relief within this specialist court.

Judicial Reasoning

The Court’s reasoning turned on statutory interpretation, jurisdictional allocation, and the overriding purpose of civil procedure. The Court determined that even if the Supreme Court could also hear the subject matter, the Land and Environment Court had been expressly vested with jurisdiction for this kind of claim, and was best placed to determine it.

The Court also determined that the transfer would undermine efficiency and justice, because it would likely cause the loss of an imminent final hearing date, require duplication of judicial and party resources, and impose unfairness on a party that had complied with timetabling orders.

Judicial Original Quotation Principle

The Court anchored the transfer discretion in the statutory scheme and the overriding purpose. The determinative reasoning is captured in the Court’s reliance on the Encroachment of Buildings Act 1922 (NSW), which expressly defines the relevant “Court” and vests jurisdiction accordingly:

“Either an adjacent owner or an encroaching owner may apply to the Court for relief under this Act in respect of any encroachment.”
“The term ‘Court’ is defined in s 2 of the Act to mean ‘the Land and Environment Court’.”

This mattered because it framed the proceedings as belonging, by legislative design, in the Land and Environment Court. Once that framing was accepted, the asserted “complexity” could not, without more, justify taking the case out of the specialist forum intended by Parliament.

Chapter 7: Final Judgment of the Court

Content

The Court dismissed the notice of motion seeking transfer of the proceedings to the Supreme Court of New South Wales. The Court also refused a stay of proceedings.

As to costs, the Court ordered that the costs of the motion be costs in the cause. The Court then made consequential timetabling orders preserving the allocated final hearing date, with the consent of the parties.

The practical consequence was clear: the substantive encroachment proceedings remained in the Land and Environment Court, and the case management pathway towards the final hearing was preserved.

Chapter 8: In-depth Analysis of the Judgment: How Law and Evidence Lay the Foundation for Victory

Disassembly of Judgment Basis

This judgment is a procedural ruling, but it carries a powerful lesson: procedural motions succeed or fail on a disciplined alignment between the relief sought, the statutory forum, and the practical justice of the case management context.

Below are the critical “victory points” that explain how the successful party’s position prevailed.

Special Analysis

Victory Point 1: The statutory forum was not incidental; it was the core architecture of the claim

Conclusion = Statutory allocation + pleaded claim scope

• The Court held that the Land and Environment Court had been “expressly and intentionally vested” with jurisdiction to entertain the claim under the Encroachment of Buildings Act 1922 (NSW).
• Even if the Supreme Court had jurisdiction in a general sense, the statutory scheme mattered: the Act defines the relevant court, and the relief sought was relief “under this Act”.

Why it matters for practice: forum selection is not merely a strategic preference. Where a statute allocates a specialised pathway, transfer applications must grapple with that design, not bypass it by asserting general complexity.

Victory Point 2: The Court decided the transfer application by reference to the case as pleaded, not the case as rhetorically expanded

Conclusion = Pleadings + procedural reality

• The Respondents asserted additional issues (easements, boundaries, “common law proprietary rights”), but the Court determined that only the encroachment issue was before it, because only that issue was pleaded in the Class 3 application and statement of facts and contentions.
• The absence of a boundary determination application was decisive in neutralising the asserted complexity.

Why it matters for the general public: a court cannot decide a dispute that has not been properly brought before it. Saying “there are other issues” is not the same as formally commencing proceedings about those issues.

Victory Point 3: Ancillary jurisdiction exists, reducing the force of “complexity” arguments

Conclusion = Primary jurisdiction + ancillary jurisdiction

• The Court noted that the Land and Environment Court has ancillary jurisdiction to hear and dispose of matters that are ancillary to a matter within its jurisdiction.
• This meant that even if there were related issues, the specialist court was not necessarily powerless to deal with them in a way that supported efficient resolution.

Why it matters: transfer is not justified merely because a dispute has multiple strands. The moving party must show that the existing court cannot competently and lawfully determine what is actually before it, or that another court is clearly more appropriate.

Victory Point 4: The power to grant the relief sought was clear, under both the Act and the Land and Environment Court Act

Conclusion = Relief sought + statutory power

• The Court determined that it had power to grant injunctive relief under the Land and Environment Court Act 1979 (NSW).
• It also had power to grant compensation, conveyancing-type relief, or removal orders under the Encroachment of Buildings Act 1922 (NSW).

Why it matters: transfer under s 149B of the Civil Procedure Act 2005 (NSW) is heavily influenced by whether the current court can grant the remedy. If it can, the moving party must show something more than preference.

Victory Point 5: Case management justice was decisive: transfer would have destroyed efficiency and created unfairness

Conclusion = Overriding purpose + timetable stage + compliance

The Court determined that transfer would not save time or costs. It would do the opposite because:

• a final hearing date had already been allocated for a date not far away,
• the Applicants had complied with directions and filed their evidence,
• the Respondents had not complied with directions,
• transfer would likely require a new timetable and cause loss of the existing hearing date.

This was not a “mere inconvenience”; it was a practical injustice to the party that had done what the Court ordered, and it would frustrate the statutory objective of the just, quick, and cheap resolution of proceedings.

Victory Point 6: Judicial resources were already committed; transfer would duplicate them

Conclusion = Resource allocation + duplication risk

The Court determined that resources had already been allocated in the Land and Environment Court for case management and the scheduled hearing. Transfer would require the Supreme Court to allocate fresh judicial resources and likely restart procedural steps. That is the type of inefficiency s 56 of the Civil Procedure Act 2005 (NSW) is intended to avoid.

Victory Point 7: Delay in bringing the motion undermined the claim to procedural necessity

Conclusion = Delay + proximity of hearing + justice

The Court held that the timing of the transfer request mattered. A late motion, close to a final hearing, tends to be assessed against whether it would derail the pathway to determination. Here, it would.

Victory Point 8: The stay application collapsed once the transfer failed, and no independent basis was established

Conclusion = Transfer outcome + stay principles

The Court determined that the purpose of the stay was to pause proceedings pending transfer. Once transfer was refused, the stay had no foundation. Even on any alternative basis, the Respondents did not demonstrate a proper basis for a stay.

Judgment Points

1. Discretion under s 149B is wide, but anchored in the overriding purpose: The Court applied the approach that the discretion must be exercised consistently with the just, quick, and cheap resolution of proceedings.
2. Factors are guides, not a checklist: The Court adopted factors commonly considered for transfer, including jurisdiction, power to grant relief, expertise, time and cost, judicial resources, and justice in all the circumstances.
3. Specialist court expertise is a real factor: The Land and Environment Court’s specialist nature supported retention.
4. Procedural compliance influences discretionary relief: The Applicants’ compliance and the Respondents’ non-compliance formed part of the practical justice assessment, without the Court needing to make any adverse credibility findings.

Legal Basis

The key statutory provisions and principles used to resolve the motion included:

• Civil Procedure Act 2005 (NSW):
  • s 56 (overriding purpose of just, quick and cheap resolution)
  • s 149B (transfer between the Supreme Court and the Land and Environment Court)
• Encroachment of Buildings Act 1922 (NSW):
  • s 2 (definition of “Court”)
  • s 3 (application for relief, scope of orders, and discretionary considerations)
• Land and Environment Court Act 1979 (NSW):
  • ancillary jurisdiction provisions
  • injunctive relief power provisions relevant to the relief sought in Class 3 context
• Real Property Act 1900 (NSW):
  • provisions relevant to boundary determination pathways and limited title context, referenced to explain what was not presently in issue

Evidence Chain

Although the hearing was procedural, the Court’s conclusion followed an evidence-and-law chain that can be stated transparently:

1. Identify the actual proceedings: The pleaded claim was for encroachment relief, not for boundary determination or easement declarations.
2. Identify the statutory pathway: The Encroachment of Buildings Act 1922 (NSW) provides a specific remedy scheme.
3. Identify the allocated forum: The Act defines the Court as the Land and Environment Court.
4. Identify practical stage and compliance: Final hearing listed; Applicants’ evidence served; Respondents’ evidence not served.
5. Apply the transfer factors through the overriding purpose: Transfer would not improve justice or efficiency; it would likely defeat both.

Judicial Original Quotation Principle

The ratio-level core is the statutory allocation of forum and the practical justice of retaining a near-ready case in the specialist court. The Court’s reasoning is encapsulated by its reliance on the Act’s definition of the forum and the purpose-driven exercise of discretion:

“This Court has been expressly and intentionally vested with exclusive jurisdiction to entertain the claim pursuant to s 3 of the Act.”
“The term ‘Court’ is defined in s 2 of the Act to mean ‘the Land and Environment Court’.”

This was determinative because it transformed the transfer request from a question of preference into a question of statutory design: the legislation itself pointed to the correct forum, and the discretionary transfer power was not used to defeat that design in circumstances where retention also best served procedural justice.

Analysis of the Losing Party’s Failure

The Respondents’ motion failed for interconnected reasons:

1. Mismatch between asserted complexity and the pleaded proceedings: The Court determined that only the encroachment claim was before it.
2. Insufficient engagement with the statutory scheme: The motion could not overcome the Act’s definition of the relevant court.
3. Failure to show a net efficiency gain: Transfer would likely cause delay, duplication, and increased costs.
4. Procedural posture and compliance issues: The Respondents had not filed evidence in accordance with orders, weakening any submission that the Court should grant discretionary relief that would disrupt the case management pathway.
5. Stay lacked an independent foundation: Once transfer was refused, the stay application was effectively spent, and no alternative justification was demonstrated.

Implications

1. A small boundary intrusion can produce big legal consequences. Property law is built on certainty. Even a small encroachment can justify compensation, removal, or other relief because boundaries define ownership, not merely usage.
2. Courts decide what is formally brought before them, not what is informally alleged. If a party believes there is a boundary determination issue, it must be properly commenced and pleaded. Otherwise, it will not control the procedural course of the case.
3. Specialist courts exist for a reason. When Parliament creates a specialist pathway, it often reflects an institutional judgment about expertise, efficiency, and consistent decision-making.
4. Case management compliance is a form of litigation credibility. Parties who comply with timetables strengthen their position when discretionary applications are argued; parties who do not comply risk losing procedural advantages.
5. Late procedural manoeuvres carry litigation risk. Applications that would derail an imminent hearing are likely to be scrutinised through the lens of practical justice, not just legal possibility.

Q&A Session

Q1: If the Supreme Court can hear an encroachment dispute, why not transfer it there anyway?

Because the legal test is not whether the Supreme Court can hear it in the abstract, but whether it is more appropriate to do so. Where a statute defines the relevant court and vests jurisdiction in a specialist forum, the applicant for transfer must show a real practical and legal advantage consistent with the overriding purpose. Here, transfer would likely have increased delay and cost, and undermined the statutory scheme.

Q2: Does the age of the wall, built more than 20 years ago, automatically defeat an encroachment claim?

No automatic conclusion follows from age alone. The effect of time depends on the statutory framework, limitation issues, factual circumstances, and equitable considerations. The procedural motion did not determine the merits, and the Court focused on forum and case management rather than finally resolving limitation defences.

Q3: If there really is a boundary determination issue, what should a party do?

They should pursue the appropriate statutory pathway for boundary determination and properly commence and plead the claim. Courts will not treat an uncommenced dispute as a controlling issue for transfer unless it is formally before the Court or constitutes related proceedings that make a combined hearing truly more appropriate.

Appendix: Reference for Comparable Case Judgments and Practical Guidelines

1. Practical Positioning of This Case

Case Subtype:

Civil Procedure and Forum Dispute within Land and Environment Court Class 3 Encroachment Proceedings

Judgment Nature Definition:

Interlocutory Judgment (Procedural ruling on transfer and stay; not a final determination of the encroachment merits)

2. Self-examination of Core Statutory Elements

[Execution Instruction Applied]

This case most closely fits category ⑨ Civil Litigation and Dispute Resolution. The following core test standards are provided for reference only. Outcomes tend to be determined by the specific statutory setting, the pleaded issues, the procedural stage, and the evidence.

Core Test: Has the Limitation Period expired? Does the Court have Jurisdiction over the matter? Has the duty of Discovery/Disclosure of evidence been satisfied?

Step 1: Identify the source of jurisdiction and the correct forum

• Determine whether the cause of action is statutory (for example, relief under the Encroachment of Buildings Act 1922 (NSW)) or purely common law.
• Identify whether the statute defines or allocates the “Court” with authority to grant relief.
• Confirm that the proceeding, as pleaded, falls within the class jurisdiction of the forum (for example, Class 3 in the Land and Environment Court).

Risk indicator: A forum challenge tends to be higher risk where the statute clearly allocates the dispute to a specific court, because transfer may undermine legislative design.

Step 2: Define the proceedings as pleaded, not as suggested

• Identify the originating process and the relief sought.
• Identify the statement of facts and contentions, points of claim, points of defence, and any cross-claims.
• Confirm whether alleged “related issues” are actually pleaded or merely asserted background.

Risk indicator: A transfer application tends to be lower prospects where “complexity” is based on unpleaded issues.

Step 3: Apply the transfer discretion consistently with the overriding purpose

Where transfer is sought under s 149B of the Civil Procedure Act 2005 (NSW), the moving party should address, in evidence and submissions:

• Jurisdiction: whether either court lacks jurisdiction, or whether both have jurisdiction but one is more appropriate.
• Power to grant relief: whether the current court can grant the full suite of orders sought.
• Comparative suitability: whether one court is better placed due to expertise and procedures.
• Time and cost: whether transfer tends to save time and costs, or tends to create delay and duplication.
• Judicial resources: whether transfer promotes efficient resource allocation or wastes already allocated resources.
• Justice in all circumstances: whether transfer would be fair, including fairness to a party that has complied with timetables.

Risk indicator: Transfer tends to be higher risk if a final hearing date is imminent and compliance is asymmetrical.

Step 4: Assess stay principles separately and concretely

A stay is not automatic. A party seeking a stay should identify:

• The legal basis: whether it is ancillary to a transfer request or grounded in other principles.
• The prejudice: what harm will occur if proceedings continue.
• The balance of convenience: comparative prejudice to each party.
• The public interest in timely resolution: consistent with s 56 of the Civil Procedure Act 2005 (NSW).

Risk indicator: A stay tends to be refused where it merely delays proceedings without a demonstrated legal necessity or compelling practical injustice.

Step 5: Evidence readiness and disclosure discipline

Even where formal discovery is not yet ordered or is limited, parties should:

• Preserve and disclose relevant documents early where required.
• Comply with court directions for affidavits, expert evidence, and timetabling.
• Avoid tactical non-compliance, which tends to undermine discretionary applications.

Risk indicator: Non-compliance with timetabling directions tends to weaken a party’s position when seeking discretionary interlocutory relief.

3. Equitable Remedies and Alternative Claims

[Execution Instruction Applied]

Where statutory law appears constrained, parties sometimes explore equitable or alternative doctrines. The viability depends on pleaded facts, limitation issues, and unconscionability considerations.

Promissory / Proprietary Estoppel

• Did the other party make a clear and unequivocal promise or representation about boundary use, access, or ownership?
• Did the relying party act to their detriment based on that representation, such as funding works, altering structures, or refraining from asserting rights?
• Would it be unconscionable for the representor to depart from that promise?

Practical note: In boundary and encroachment contexts, estoppel arguments tend to be fact-heavy and require careful proof of reliance and detriment. They may provide leverage where strict title arguments create sharp outcomes, but success tends to depend on compelling factual evidence.

Unjust Enrichment / Constructive Trust

• Has one party received a benefit, such as increased land utility or structural support, at the expense of the other?
• Is it against conscience for that party to retain the benefit without compensation?
• Is a constructive trust or equitable charge a plausible remedy, given the property context?

Practical note: Courts tend to be cautious in using equity to rewrite property boundaries, but equitable remedies can sometimes support compensation-style outcomes where strict remedies are disproportionate, depending on the statutory framework and the facts.

Procedural Fairness

In transfer and stay disputes, procedural fairness issues may arise where:
– a party was not given a reasonable opportunity to respond to a motion,
– orders were made without notice, or
– there is a demonstrated apprehension of bias.

Practical note: In ordinary contested motions, courts tend to manage fairness through directions, timetables, and hearing opportunities. A party alleging procedural unfairness should identify the specific procedural step that caused prejudice, not merely the fact of an adverse outcome.

Ancillary Claims

If a statutory pathway is not available, parties sometimes consider:
– declaratory relief as to rights and obligations,
– injunctive relief to prevent continuing trespass or interference,
– damages claims for nuisance or trespass, subject to limitation and proof issues.

Practical note: The selection of claims should be consistent with jurisdiction and forum, and should be pleaded with clarity to avoid procedural derailment.

4. Access Thresholds and Exceptional Circumstances

Regular Thresholds

In civil procedure and dispute resolution contexts, common hard indicators include:

• Transfer applications: The moving party must satisfy the court that it is more appropriate for the proceedings to be heard in the other court, applying s 149B of the Civil Procedure Act 2005 (NSW) through the overriding purpose in s 56.
• Case management timetables: Non-compliance with filing and service directions tends to attract procedural consequences and can affect discretionary relief.
• Stay applications: The moving party must show a proper basis, commonly involving demonstrated prejudice and an identified legal necessity, rather than mere preference or delay.

Exceptional Channels (Crucial)

Examples of circumstances that may make transfer or stay more realistically arguable include:

• Related proceedings pending in the other court: If genuinely related proceedings are already on foot and a combined hearing tends to avoid duplication, the case for transfer may strengthen.
• Relief not available in the current court: If the current court cannot grant the orders necessary to resolve the real controversy, transfer may become more appropriate.
• Demonstrable procedural injustice: For example, if a hearing date was fixed in a way that denies a party a realistic opportunity to prepare, a short stay or procedural adjustment may be considered.

Suggestion: Do not abandon a potential claim simply because you do not meet the standard procedural conditions at first glance. Carefully compare your circumstances against available exceptions and the actual statutory scheme governing your cause of action, as exceptions can sometimes become decisive in interlocutory applications.

5. Guidelines for Judicial and Legal Citation

Citation Angle

It is recommended to cite this case in legal submissions or debates involving:
– transfer applications between the Supreme Court and the Land and Environment Court under s 149B of the Civil Procedure Act 2005 (NSW),
– the weight given to specialist jurisdiction and statutory forum allocation,
– the interaction between the overriding purpose and late procedural manoeuvres that threaten an imminent final hearing date,
– the principle that proceedings are assessed as pleaded when determining procedural applications such as transfer.

Citation Method

• As Positive Support: When your matter involves a statutory scheme allocating a specialist forum, and the opposing party seeks transfer on general assertions of complexity, citing this authority can strengthen your argument that forum allocation, power to grant relief, and case management justice are central to the s 149B discretion.
• As a Distinguishing Reference: If the opposing party cites this case, you should emphasise any uniqueness of your matter, such as genuinely pleaded related proceedings in the other court, relief unavailable in the current court, or a procedural posture where transfer would not disrupt an allocated imminent hearing date.

Anonymisation Rule

In narrative discussion and practical guidance, do not use the real names of the parties; use procedural titles such as Applicant / Respondent. Where the case name must be cited for formal legal purposes, retain the published case name and citation in accordance with AGLC4.

Conclusion

Refined Core Implications

This judgment demonstrates that civil procedure is not a side-show: it is the pathway that determines whether disputes are resolved efficiently and fairly. Where a statute allocates a specialist forum and the matter is already prepared for final hearing, a late transfer application tends to face a high hurdle, particularly if it would cause delay, duplication, and injustice to a party that has complied with court directions.

Golden Sentence

Everyone needs to understand the law and see the world through the lens of law. The in-depth analysis of this authentic judgment is intended to help everyone gradually establish a new legal mindset: True self-protection stems from the early understanding and mastery of legal rules.

####### Disclaimer

This article is based on the study and analysis of the public judgment of the Land and Environment Court of New South Wales (Van Beek v Lou [2025] NSWLEC 21), aimed at promoting legal research and public understanding. The citation of relevant judgment content is limited to the scope of fair dealing for the purposes of legal research, comment, and information sharing.

The analysis, structural arrangement, and expression of views contained in this article are the original content of the author, and the copyright belongs to the author and this platform. This article does not constitute legal advice, nor should it be regarded as legal advice for any specific situation.

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