Ashworth v Terrill

[2019] NSWSC 1432

Supreme Court

New South Wales

Medium Neutral Citation:

Ashworth v Terrill [2019] NSWSC 1432

Hearing dates:

17 October 2019

Date of orders:

17 October 2019

Decision date:

17 October 2019

Jurisdiction:

Common Law

Before:

Cavanagh J

Decision:

(1)    Motion filed today is dismissed.
(2)   First defendant to pay plaintiffs’ costs of and incidental to the motion.

Catchwords:

CIVIL PROCEDURE —consolidation of proceedings — whether to transfer to Equity Division — Real Property List

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 56
Real Property Act 1900 (NSW)
Supreme Court Act 1970 (NSW), ss 54, 69

Category:

Procedural and other rulings

Parties:

Proceedings 2019/230614
Faye Ashworth (First Plaintiff)
Scott Robertson (Second Plaintiff)
Robert Arthur Terrill (First Defendant)
Jennifer Denise Milne (Second Defendant)
James Christopher Morley (Third Defendant)
Registrar-General (Fourth Defendant)

  Proceedings 2019/306730
Faye Ashworth (First Plaintiff)
Scott Robertson (Second Plaintiff)
Robert Arthur Terrill (Defendant)

Representation:

Counsel:
Proceedings 2019/230614
Mr S Robertson (First Plaintiff and in person as the Second Plaintiff)
Mr J Van Aalst (First Defendant)

 

Proceedings 2019/306730
Mr S Robertson (First Plaintiff and in person as the Second Plaintiff)
Mr J Van Aalst (Defendant)

 

Solicitors:
Proceedings 2019/230614
Pryor Tzannes & Wallis Law (Plaintiffs)
Wright Law & Justice (First, Second and Third Defendants)
Solicitor for the Registrar­-General (Fourth Defendant)

  Proceedings 2019/306730
Pryor Tzannes & Wallis Law (Plaintiffs)
Wright Law & Justice (Defendant)

File Number(s):

2019/230614; 2019/306730

Publication restriction:

Nil

EX TEMPORE Judgment

1. HIS HONOUR: These proceedings come before the Court today by way of a notice of motion filed on behalf of the first defendant seeking an order pursuant to s 54 of the Supreme Court Act1970 (NSW) that the proceedings be transferred to the Real Property List in the Equity division to be heard concurrently with other proceedings commenced by the plaintiffs against the first defendant on 1 October 2019 (case number 2019/306730) (being proceedings which also concern the Real Property Act).

2. Mr Van Aalst appears for the first defendant as the applicant on the motion. Mr Robertson appears for the first plaintiff and represents himself as the second plaintiff on the application today. The second, third and fourth defendants have filed submitting appearances. There is no appearance by those parties today.

3. In essence, the first defendant seeks to have these proceedings, being pursued in the Administrative and Industrial Law List of the Common Law Division, transferred to the Real Property List of the Equity Division to run concurrently with other proceedings commenced by the plaintiffs on 1 October 2019.

4. Section 54 of the Supreme Court Act allows the Court on application by a party to order that the whole or any part of the proceedings in the division be transferred to another division. It is not suggested by either party that I would not have the power to transfer if this is an appropriate case.

5. The background to the proceedings is that the plaintiffs are the owners of land situated in Darlinghurst. The first defendant is the owner of the adjoining land.

6. The plaintiffs settled on the purchase of their property on 7 November 2018. On 3 December 2018, the second plaintiff sent an email to the first defendant asserting an interest in certain land which is described as a "lane". No response was received to that email. On 5 December 2018 the first defendant applied for the lane to be brought under the provisions of the Real Property Act 1900 (NSW) for his benefit. It is common ground that that application was made without notice to the plaintiffs. Then on 29 April 2019 the Registrar General determined the application favourably to the first defendant.

7. In these proceedings, the plaintiffs seek an order in the nature of certiorari quashing the decision of the Registrar General. The plaintiffs maintain a lack of procedural fairness in that they had a right to be heard. They seek to have the decision quashed and the matter remitted back to the Register General where, on their case, they could be heard.

8. The adjoining land owners are in dispute as to an area of land which appears on the survey to form part of a walkway leading to the first defendant's property. I hasten to add that my description of the area of land is just a general description of my impression from the survey.

9. Subsequent to the commencement of these proceedings, the plaintiffs also commenced other proceedings on 1 October 2019 seeking an extension of a caveat which had been filed as well as final relief. Those proceedings are in the Real Property List of the Equity Division and are being managed by Darke J. Those proceedings will come back before his Honour on 24 October 2019 for some further limited issues to be determined by his Honour but not for any final relief or any final hearing.

10. The first defendant submits that these proceedings, that is the proceedings in the Common Law Division, should now be transferred to the Equity Division to be managed with the subsequent proceedings commenced by the plaintiffs.

11. The first defendant submits that the facts and circumstances giving rise to both sets of proceedings are similar and that there will need to be a determination of similar issues in both cases. Of course underlying both proceedings is the dispute as to the first defendant's interest in what I call the "walkway", or the "lane" as described by the plaintiffs. As the first defendant says, the issue of adverse possession is very much alive in both sets of proceedings.

12. Both sets of proceedings might involve some similar factual issues. Mr Van Aalst submits that they do. In that sense it might be appropriate that the cases run together and be heard at the same time.

13. However, there are a number of other factors which are relevant to any decision whether to transfer the matter to the Real Property List.

14. Central to the first defendant's application is a number of propositions. Firstly, the first defendant submits that the plaintiffs, having elected to commence proceedings in this division and then having elected to commence proceedings in the Equity Division, should not benefit from what is described as their own forensic decisions to the detriment of the first defendant. The first defendant submits that he should not be required to face two separate cases in two separate divisions essentially involving the same set of facts and circumstances.

15. Secondly the first defendant submitted that the proper division for the commencement of these proceedings was always the Equity Division and the Real Property List. The plaintiffs dispute that contention.

16. Thirdly, the first defendant submits that the issues in both proceedings can be heard at the same time in the same court and that the first defendant should not have to defend two sets of proceedings with all the attendant costs that that involves. The first defendant point to prejudice.

17. Fourthly, the first defendant also points to the risks associated with differing judgments in differing cases, although I have to say I am not certain that that would necessarily arise.

18. The plaintiffs oppose the application. They point to the fact that these proceedings are listed for hearing on 20 November 2019, that the parties are ready to proceed with the hearing, that evidence has been exchanged, and that the hearing will only take one day. They say that should this application be successful, the matter will come before Darke J who will inevitably have to relist the hearing scheduled to take place on 20 November 2019 before him at some future time, most likely being next year.

19. Further, the plaintiffs submit that the proposition that both sets of proceedings involve the same facts and circumstances is not correct.

20. The plaintiffs suggest that in the current proceedings the real issue will be whether the decision of the Registrar General should be quashed due to a lack of procedural fairness in the decision-making process rather than any underlying facts relating to matters such as adverse possession and other matters which might ordinarily arise in proceedings under the Real Property Act.

21. Most importantly, the plaintiffs also submit that the issues arising in the current proceedings must be determined by a court before the proceedings being pursued in the Equity Division can progress. The reason for that is that the plaintiffs' case could be completely different, that is, the plaintiffs' case in the Equity Division could be completely different in terms of evidence and issues depending on the outcome of these proceedings.

22. If the plaintiffs succeed in their challenge to the decision of the Registrar General, then the matter will be remitted back to the Register General and they would have a right to be heard on the issues for determination by the Registrar General. If they ultimately succeed before the Registrar General, then they will not be pursuing a case which involves relying on the exceptions to the indefeasibility principle.

23. There is merit in the submissions as advanced by the plaintiffs. The result of any transfer to the Real Property List would be that the hearing date of 20 November 2019 would be vacated. Then the plaintiffs would apply for the setting down of a new hearing date in the Equity Division to deal with the same issue which is currently to be determined in this division on 20 November.

24. Further, the parties are well advanced in terms of their preparation for the hearing of 20 November and there will be some slippage or wastage in respect of costs.

25. The plaintiffs also dispute the proposition advanced on behalf of the first defendant that these proceedings should have been commenced in the Real Property List in the first place. It may be that if they were commenced in the Real Property List, there would have been no challenge by the plaintiffs to the case being heard in the Real Property List but Supreme Court Practice Note CL 3 relates to the Administrative and Industrial Law List. As referred to in para 5, "proceedings under section 69 of the Supreme Court Act 1970 (NSW): specifically challenges based on an error of law on the face of the record; or jurisdictional error (‘administrative law matters’)”, are to be allocated to the list. It is not necessary for me to determine necessarily whether the proceedings could have been commenced in the Real Property List. In my view the plaintiffs were entitled to commence these proceedings in this division.

26. Mr Robertson identified what he described as the long way of justifying the correctness of the decision to commence proceedings in this division but it does not seem necessary to do more than consider the relevant Practice Note. As such, to the extent that it was submitted on behalf of the first defendant that these proceedings should never have been commenced in this division, I do not agree. Further, I accept that the proper division to pursue the subsequent proceedings is the Equity division and, in particular, the Real Property List.

27. I agree that, as the first defendant submitted, because of the plaintiffs’ decisions to commence two separate sets of proceedings in separate divisions, the first defendant is required to defend two separate proceedings in separate divisions. Normally that would be a powerful reason to transfer these proceedings to the Equity Division. However, as I have indicated, these proceedings are listed for hearing on 20 November. Any judge of this division, in particular a judge hearing the case in this specialist list would be quite capable of hearing and determining the issues which arise in these proceedings. It is not necessary to transfer the matter to the Real Property List for what may be the greater expertise of that division in real property matters.

28. Further, whilst the matters might involve the same facts and circumstances in a general sense, I am not convinced that they really do involve the same facts and circumstances at such a level that it is appropriate that this matter be transferred to the Real Property List.

29. Finally, the plaintiffs suggest that if the matter is to run with the Real Property List matter and is ultimately not heard until the Real Property List matter is heard, then the proceedings might occupy a week or two of court time. I can only assume the accuracy of that estimate. It seems unlikely that any costs will be saved by the vacation of a one day hearing for which the parties should already be prepared.

30. In all those circumstances it does not seem to me that there would be much benefit to either party in transferring this matter to the Real Property List.

31. Finally the first defendant raised s 56 of the Civil Procedure Act 2005 (NSW). Of course I must be informed by s 56 but in circumstances in which this matter is listed for a one day hearing and the parties are ready to proceed the most cost effective and efficient way of dealing with the matter is that it actually proceeds to hearing on 20 November 2019.

32. In the circumstances, I decline to make the orders sought in the motion filed today. The motion is dismissed.

33. I order that the first defendant pay the plaintiffs’ costs of and incidental to the motion.

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Decision last updated: 21 October 2019