Arcidiacono v The Owners - Strata Plan 61233 - [2019] NSWCA 46

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Arcidiacono v The Owners – Strata Plan 61233 [2019] NSWCA 46
Hearing dates: 6 March 2019
Date of orders: 06 March 2019
Decision date: 14 March 2019
Before: Basten JA at [61]
White JA at [1]
Decision:
1. Dismiss the application for leave to appeal.
2. Applicant to pay the costs of each of the respondents.

Catchwords:
LAND LAW — Easements — Whether easements created by conveyances in 1839 bind present-day registered proprietors
CIVIL PROCEDURE — Court administration — Court powers — Whether successor in title can reopen ex parte proceedings in which orders were made that affect property succeeded to
Legislation Cited: Conveyancing Act 1919 (NSW), Pt 23, ss 88K, 184G
Deeds Registration Act 1825 (6 Geo. IV No. 22)
Deeds Registration Act 1843 (7 Vic. No. 16)
Local Government Act 1993 (NSW), s 713
Real Property Act 1900 (NSW), s 28I
Registration of Deeds Act 1897 (NSW)
Cases Cited: BP Australia Ltd v Brown (2003) 58 NSWLR 322; [2003] NSWCA 216
Cameron v Cole (1944) 68 CLR 571; [1944] HCA 5
Chiu v Healey [2003] NSWSC 857; 12 BPR 21,241
Holroyd v Marshall (1862) 10 HLC 191; 11 ER 999
John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1; [2010] HCA 19
Pasade Holdings v Sydney City Council [2003] NSWSC 515
Pasade Holdings v Sydney City Council [2003] NSWSC 584
Tailby v Official Receiver (1888) 13 AC 523
The Owners – Strata Plan 61233 v Arcidiacono [2018] NSWSC 1260
Wilkes v Spooner [1911] 2 KB 473
Texts Cited: J D Heydon, M J Leeming, P G Turner, Meagher, Gummow and Lehane’s Equity: Doctrines and Remedies (5th ed, 2015, LexisNexis Butterworths)
R Hastings, G Weir, Hastings and Weir, Probate Law and Practice (1939, Lawbook Co)
R E Megarry, H W R Wade, The Law of Real Property (3rd ed, 1966, Stevens & Sons Limited) at 543-544.
Category: Procedural and other rulings
Parties: John Anthony Arcidiacono (First Applicant)
Anna Marie Arcidiacono (Second Applicant)
The Owners – Strata Plan 61233 (First Respondent)
The Owners – Strata Plan 17719 (Second Respondent)
The Owners – Strata Plan 73850 (Third Respondent)
Registrar General of New South Wales (Fourth Respondent)
Representation:
Counsel:
T Hale SC with L E Higgins (Applicants)
A Rogers (First Respondent)
C A Webster SC (Second Respondent)
A Leopold SC with D Elliott (Third Respondent)
L Walsh (Fourth Respondent)
Solicitors:
Russells Law (Applicants)
Peter Prior & Co Solicitors (First Respondent)
Jane Crittenden, Lawyer (Second Respondent)
J S Mueller & Co (Third Respondent)
Fiona Harris (Fourth Respondent)

File Number(s): 2018/277503
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity Division

Citation:

[2018] NSWSC 1260

Date of Decision:

14 August 2018

Before:

Darke J

File Number(s):

2016/187360

Judgment

WHITE JA: On 14 August 2018 Darke J refused the applicants leave to file a cross-claim in proceedings commenced by the first and second respondents: The Owners – Strata…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] NSWCA 46
Decision Date: 14 March 2019

CaseChat Overview and Summary

The applicant, Mr. Arcidiacono, sought leave to appeal a decision of the primary judge concerning easements affecting his property. The respondents were the Owners - Strata Plan 61233. The dispute centred on whether certain easements, purportedly created by conveyances in 1839, were binding on the present-day registered proprietors of the land.

The primary legal issues before the court were whether the easements were validly created and enforceable against the current owners, and whether the applicant, as a successor in title, could reopen ex parte proceedings in which orders affecting the property had previously been made.

The Court of Appeal dismissed the application for leave to appeal. The reasoning, though not detailed in the provided text, would have addressed the enforceability of ancient easements against registered proprietors under the Torrens system and the principles governing the reopening of ex parte orders by successors in title. The court found no arguable error in the primary judge's decision.

Consequently, the application for leave to appeal was dismissed, and the applicant was ordered to pay the costs of each of the respondents.

Orders

Orders of the court

1. Dismiss the application for leave to appeal.

2. Applicant to pay the costs of each of the respondents.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Arcidiacono v The Owners – Strata Plan 61233 [2019] NSWCA 46
Hearing dates:	6 March 2019
Date of orders:	06 March 2019
Decision date:	14 March 2019
Before:	Basten JA at [61] White JA at [1]
Decision:	1. Dismiss the application for leave to appeal. 2. Applicant to pay the costs of each of the respondents.
Catchwords:	LAND LAW — Easements — Whether easements created by conveyances in 1839 bind present-day registered proprietors CIVIL PROCEDURE — Court administration — Court powers — Whether successor in title can reopen ex parte proceedings in which orders were made that affect property succeeded to
Legislation Cited:	Conveyancing Act 1919 (NSW), Pt 23, ss 88K, 184G Deeds Registration Act 1825 (6 Geo. IV No. 22) Deeds Registration Act 1843 (7 Vic. No. 16) Local Government Act 1993 (NSW), s 713 Real Property Act 1900 (NSW), s 28I Registration of Deeds Act 1897 (NSW)
Cases Cited:	BP Australia Ltd v Brown (2003) 58 NSWLR 322; [2003] NSWCA 216 Cameron v Cole (1944) 68 CLR 571; [1944] HCA 5 Chiu v Healey [2003] NSWSC 857; 12 BPR 21,241 Holroyd v Marshall (1862) 10 HLC 191; 11 ER 999 John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1; [2010] HCA 19 Pasade Holdings v Sydney City Council [2003] NSWSC 515 Pasade Holdings v Sydney City Council [2003] NSWSC 584 Tailby v Official Receiver (1888) 13 AC 523 The Owners – Strata Plan 61233 v Arcidiacono [2018] NSWSC 1260 Wilkes v Spooner [1911] 2 KB 473
Texts Cited:	J D Heydon, M J Leeming, P G Turner, Meagher, Gummow and Lehane’s Equity: Doctrines and Remedies (5th ed, 2015, LexisNexis Butterworths) R Hastings, G Weir, Hastings and Weir, Probate Law and Practice (1939, Lawbook Co) R E Megarry, H W R Wade, The Law of Real Property (3rd ed, 1966, Stevens & Sons Limited) at 543-544.
Category:	Procedural and other rulings
Parties:	John Anthony Arcidiacono (First Applicant) Anna Marie Arcidiacono (Second Applicant) The Owners – Strata Plan 61233 (First Respondent) The Owners – Strata Plan 17719 (Second Respondent) The Owners – Strata Plan 73850 (Third Respondent) Registrar General of New South Wales (Fourth Respondent)
Representation:	Counsel: T Hale SC with L E Higgins (Applicants) A Rogers (First Respondent) C A Webster SC (Second Respondent) A Leopold SC with D Elliott (Third Respondent) L Walsh (Fourth Respondent) Solicitors: Russells Law (Applicants) Peter Prior & Co Solicitors (First Respondent) Jane Crittenden, Lawyer (Second Respondent) J S Mueller & Co (Third Respondent) Fiona Harris (Fourth Respondent)
File Number(s):	2018/277503
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Division Citation: [2018] NSWSC 1260 Date of Decision: 14 August 2018 Before: Darke J File Number(s): 2016/187360