Armidale Regional Council v Vorhauer - [2019] NSWSC 1153

Supreme Court

New South Wales

Medium Neutral Citation: Armidale Regional Council v Vorhauer [2019] NSWSC 1153
Hearing dates: 29 April 2019
Decision date: 06 September 2019
Jurisdiction: Common Law
Before: Ierace J
Decision:
(1) Pursuant to r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW), the defence filed on 23 January 2019 and the amended defence filed on 16 April 2019 are struck out.
(2) The first and third defendants are to pay the plaintiff’s costs of the motion.
Catchwords: CIVIL PROCEDURE – Pleadings – Striking out – No reasonable cause of action or defence – Tendency to cause prejudice, embarrassment or delay – Abuse of process
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), r 14.28
Cases Cited: Harden Shire Council v Richardson [2012] NSWSC 622
Kirby v Sanderson Motors Pty Ltd (2001) 54 NSWLR 135; [2002] NSWCA 44
McGuirk v University of New South Wales [2009] NSWSC 1424
Meckiff v Simpson [1968] VR 62
Renshaw v New South Wales Lotteries Corp Pty Ltd [2018] NSWSC 1954
Shelton v National Roads & Motorists Assn Ltd [2004] FCA 1393
State of New South Wales v Williams [2014] NSWCA 177
Szanto v Bainton [2011] NSWSC 985
University of Wollongong v Mohamed Naguib Fawzi Ahmed Metwally & Others (1984) 158 CLR 447; [1984] HCA 74
Texts Cited: New South Wales Government Gazette, No 73, 1 July 1993, at 3341
Category: Procedural and other rulings
Parties: Armidale Regional Council (Plaintiff)
Florence Amelia Vorhauer (First Defendant)
Racheal Sophia Vorhauer (Third Defendant)
Representation:
Counsel:
C Ireland; J Wyner (Plaintiff)
No appearance (Defendants)
Solicitors:
Clifton Legal (Plaintiff)

File Number(s): 2018/383844

Judgment

HIS HONOUR: By a notice of motion dated 9 April 2019, Armidale Regional Council (“the plaintiff”) seeks orders that the defence filed in response to its amended statement of claim seeking an order for possession and leave to issue a writ of possession for a property, be struck out. The amended statement of claim identified three defendants, including the registered proprietor of the property, Florence Vorhauer (“the first defendant”) and her daughter who cohabited the property with her, Racheal Vorhauer (“the third defendant”). The second defendant was another daughter and co-habitant, Lisa Vorhauer (“the second defendant”), who died after the proceedings were initiated.
The background to this application is a longstanding failure by the first defendant to pay council rates on her property, as well as charges for water, sewerage and drainage services. The plaintiff pleaded that by 31 October 2018, the total amount owing was $72,584.04, of which $35,343.47 had been owing for more than five years, which entitled it to sell the property pursuant to s 713(2)(a) of the Local Government Act 1993 (NSW) (“the Act”). The property was sold by the plaintiff on 6 November 2018, pursuant to s 722 of the Act, for a purchase price of $108,000. The settlement and transfer of the property to the purchaser under the contract of sale is conditional on the plaintiff providing vacant possession of the property to the purchaser…

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] NSWSC 1153
Decision Date: 06 September 2019

CaseChat Overview and Summary

The case involved the Armidale Regional Council suing Vorhauer for alleged breaches of a development permit. The dispute reached the Supreme Court of New South Wales, where Vorhauer sought to have the Council's claims struck out on the grounds that they had no reasonable prospects of success and that the proceedings were an abuse of process. The primary legal issue for the court to decide was whether the claims made by the Council were legally viable and whether continuing with the case would cause prejudice, embarrassment, or unnecessary delay. The court also had to assess whether the proceedings constituted an abuse of process.

The court examined the Council's claims in detail and found that they were based on incomplete and speculative evidence. The Council had not demonstrated a sufficient basis for their claims, and the allegations did not present a reasonable cause of action. Additionally, the court noted that the continuation of the case would likely cause significant prejudice and delay, given the speculative nature of the claims. The court concluded that allowing the proceedings to continue would amount to an abuse of process, given the lack of any viable legal basis for the Council's claims. Consequently, the court decided to strike out the Council's claims.

In light of the above findings, the court ordered that the Council's claims against Vorhauer be struck out entirely. The court also directed that the proceedings be stayed to prevent any further actions by the Council in relation to the same claims. This decision ensures that Vorhauer is not subjected to further unfounded litigation and protects against unnecessary costs and delays.

Orders