Bartolomei v Uy - [2018] NSWSC 794

Supreme Court

New South Wales

Medium Neutral Citation: Bartolomei v Uy [2018] NSWSC 794
Hearing dates: 25 May 2018
Date of orders: 30 May 2018
Decision date: 30 May 2018
Jurisdiction: Equity
Before: Darke J
Decision:
Order made staying Local Court proceedings pending the determination of these proceedings or further order of the Court.

Catchwords: PRACTICE AND PROCEDURE – stay of proceedings in lower court – abuse of process – proceedings in lower court commenced shortly after proceedings commenced in Supreme Court – disputes essentially based on single set of underlying facts – whether continuation of lower court proceedings would be oppressive or vexatious
Legislation Cited: Dividing Fences Act 1991 (NSW)
Encroachment of Buildings Act 1922 (NSW)
Supreme Court Act 1970 (NSW)
Cases Cited: Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27
Urban Traders Pty Ltd v Paul Michael Pty Ltd [2009] NSWSC 1072
Category: Procedural and other rulings
Parties: Karen Josephine Bartolomei (First Plaintiff)
Joseph Francis Borg (Second Plaintiff)
Doris Maria Borg (Third Plaintiff)
Brian Uy (First Defendant)
Shane Vassallo (Second Defendant)
Representation:
Counsel:
Mr J Knackstredt (Plaintiffs)
Ms C Rose, solicitor (Defendants)
Solicitors:
DEA Lawyers (Plaintiffs)
Swaab Attorneys (Defendants)

File Number(s): 2018/26514
Publication restriction: None

Judgment

These proceedings concern a dispute between the owners of 150 Carrington Road, Randwick (the plaintiffs) and the owners of 148 Carrington Road, Randwick (the defendants). The dispute concerns a timber retaining wall that was constructed many years ago on the defendants’ property. The retaining wall was built upon or close to the boundary with the plaintiffs’ property. The plaintiffs’ property sits at a lower level than the defendants’ property. The plaintiffs claim that the retaining wall has started to fail and now encroaches upon the plaintiffs’ property, creating a nuisance.
The proceedings were commenced by Summons filed on 25 January 2018. The defendants filed an appearance on 7 February 2018. The plaintiffs seek orders pursuant to the Encroachment of Buildings Act 1922 (NSW), including an order that the defendants remove the encroaching parts of the wall. The plaintiffs also seek mandatory injunctions requiring the defendants to do what is necessary to bring the alleged nuisance to an end. Declarations are also sought, including a declaration to the effect that the retaining wall is not a fence or a dividing fence within the meaning of the Dividing Fences Act 1991 (NSW).
The defendants take the view that the retaining wall forms part of a fence for the purposes of the Dividing Fences Act. They claim that it is a foundation or support necessary for the support and maintenance of a steel fence that has been erected a short distance in from the retaining wall. In December 2017 and January 2018, the defendants served fencing notices under s 11 of the Dividing Fences Act upon each of the plaintiffs, and on 26 February 2018 the defendants commenced proceedings in the Local Court seeking orders under the Dividing Fences Act for certain fencing and…

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.

Continue reading Bartolomei v Uy

Details

AGLC: Bartolomei v Uy [2018] NSWSC 794
Case: [2018] NSWSC 794
Decision Date: 30 May 2018

CaseChat Overview and Summary

The case of Bartolomei v Uy involves a dispute between the parties where proceedings were initiated in both the Supreme Court and the County Court of Victoria. The essence of the conflict revolves around the contentions raised in both courts, which stem from a singular set of underlying facts. The plaintiff, Bartolomei, sought a stay of the proceedings in the County Court, contending that the defendant's initiation of the County Court proceedings shortly after the Supreme Court proceedings commenced amounted to an abuse of process. Bartolomei argued that continuing with the County Court proceedings would be oppressive and vexatious.

The legal issues that the court was required to address were whether the defendant's actions constituted an abuse of process and, if so, whether the continuation of the County Court proceedings would indeed be oppressive or vexatious to the plaintiff. The court examined the principles governing the abuse of process and the criteria for granting a stay of proceedings in such circumstances. The court considered the timing and nature of the proceedings, as well as the potential for duplication and the overall fairness of allowing both sets of proceedings to continue concurrently.

The Supreme Court, in its reasoning, found that the defendant's initiation of the County Court proceedings shortly after the Supreme Court proceedings commenced did indeed amount to an abuse of process. The court held that the continuation of the County Court proceedings would be oppressive and vexatious to the plaintiff, as it would result in significant duplication of effort and potentially prejudiced the plaintiff's right to a fair and efficient resolution of the dispute. The court granted the plaintiff's application for a stay of the County Court proceedings, directing that they be held in abeyance until the Supreme Court proceedings were concluded.

Orders