Chaisumdet v Milperra Hotel

[2006] NSWSC 470

CITATION:	Chaisumdet v Milperra Hotel [2006] NSWSC 470
HEARING DATE(S):	03/05/2006
JUDGMENT DATE :	3 May 2006
JURISDICTION:	Equity Division
JUDGMENT OF:	Brereton J
EX TEMPORE JUDGMENT DATE:	05/03/2006
DECISION:	Dismiss the plaintiffs' oral application for leave to join second defendant. Extend time for amended summons. Order that the proceedings continue on pleadings.
CATCHWORDS:	PROCEDURE – Joinder – where whereabouts of proposed additional defendant, if alive, not known – where no sufficiently arguable case against proposed additional defendant
PARTIES:	Bounchong Chaisumdet (P1) Saming Chaisumdet (P2) Nang Chaisumdet (P3) Milperra Hotel Pty Ltd (ACN 000 213 829)
FILE NUMBER(S):	SC 6350/04
COUNSEL:	Mr G K Burton SC (Ps) Mr D H Murr SC (D)
SOLICITORS:	Comasters Law Firm and Notary Public (Ps) Anthony Clive Parisi Solicitor (D)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRERETON J

Wednesday 3 May 2006

6350/04 Bounchong Chaisumdet & 2 Ors v Milperra Hotel Pty Limited

JUDGMENT

1 HIS HONOUR: The plaintiff seeks leave to join as second defendant Colin Michael McIlveen, for the purposes of claiming against him, alternatively to the relief under Conveyancing Act 1919 (NSW), s 88K, which is already sought, (1) a declaration that there is a valid and legally enforceable agreement between the first defendant Milperra and Mr McIlveen - the latter being said to be the predecessor in title of the plaintiffs - to create an easement for right of way in a manner recorded in a letter from Milperra to Fairfield Municipal Council, dated 4 April 1978; and (2) an order that Milperra and Mr McIlveen specifically perform that agreement.

2 At this stage the proposed second defendant, Mr McIlveen, cannot be located, and considerable efforts undertaken by the plaintiffs' solicitor to date have failed conclusively to establish whether he is alive or dead. An inference is available from some of the material which has been elicited by those searches that Mr McIlveen was an architect or builder retained by the plaintiffs' predecessors in title in connection with a development application. However, it is quite clear that Mr McIlveen himself was never the registered proprietor of the plaintiffs' land, and does not appear to be capable of being described as their predecessor in title.

3 Mr Burton SC, for the plaintiffs, submitted that he may have been the authorised agent of the plaintiffs' predecessor in title. It may be that he was their authorised agent for the purpose of making a development application, but on the material so far produced, it does not appear to me to be even faintly arguable that he was their authorised agent for the purpose of making a contract to acquire an easement over adjoining land. It is to be borne in mind that even real estate agents authorised to market properties for sale and solicitors authorised to act on sales do not, as a rule, have authority actually to make the contract.

4 In any event, it is difficult to see how an order for specific performance could possibly be made against Mr McIlveen, since it is practically impossible to see how he could respond to such an order by participating in the creation of an easement and accepting a transfer to create an easement, when he is not and was not the registered proprietor of the land presumably benefited.

5 Moreover, if there were any such agreement as the plaintiffs wish to allege, and if - as a result of their acquisition of the land - the benefit of that agreement passes to the plaintiffs, then it seems to me that the plaintiffs would have an equitable interest which they might be able directly to enforce against Milperra, by analogy with the rights of a beneficiary of a sub-trust against the head trustee. But if the circumstances were such that they had acquired no right directly against Milperra, no sufficient basis has been articulated on which they would have a cause of action against their predecessor in title, if Mr McIlveen be that, to compel him to enforce an agreement which he once had with a third party, which agreement might have benefited the land, but which the predecessor in title did not enforce. It is not as if the plaintiffs assert that their vendor undertook any contractual obligation to them to procure the benefit of an easement which might have given the plaintiffs such a right; the highest that it has been put is that there was some understanding by the plaintiffs, when they acquired their land, that there was an easement or an agreement, but no contractual obligation was said to be imposed on the vendor to procure and convey the benefit of that easement.

6 Further, enormous practical difficulties will arise if it remains the situation that Mr McIlveen cannot be located. It has been suggested that the summons might be served by advertisement, but an order for substituted service must be likely to bring the proceedings to the notice of the relevant defendant, and when the evidence simply does not show whether Mr McIlveen is alive, or dead, or in Australia, or overseas, I do not, at this stage, see how a court could be satisfied that any form of advertisement would be likely to have that effect. Accordingly, at this stage, I am not satisfied that there is a sufficiently seriously arguable cause of action against Mr McIlveen to justify his joinder to the proceedings.

7 I therefore dismiss the plaintiffs' oral application for leave to join Mr McIlveen as second defendant.

8 The plaintiffs already have leave to file an amended summons. The refusal of leave to join Mr McIlveen will make at least paragraph 1(a)(2) of the proposed amended summons otiose. Amendment will also be required of paragraphs 1(a)(1) and 1(b)(1) so as to omit references to Mr McIlveen in the capacity of second defendant, and perhaps to substitute references to the appropriate predecessor in title by name.

9 I extend, to 18 May 2006, time for the plaintiffs to file an amended summons, substantially to the effect of the draft dated 10 April 2006, but not including Mr McIlveen as second defendant and not joining any other defendant. I direct that should the plaintiffs wish to apply to join any other party as defendant, they serve by 18 May 2006 a draft Statement of Claim pleading the causes of action which they assert against those proposed defendants. The parties already have leave to apply by arrangement with my Associate, so if there is to be an application to join other parties that can be made by arrangement.

10 I order that the proceedings continue on pleadings. I direct that a Statement of Claim be filed by 18 May 2006. I abridge time for filing service of a defence to 14 days after service of the Statement of Claim.

11 The application today and the costs of today have been substantially occasioned by the plaintiff's unsuccessful application to join Mr McIlveen and by the plaintiff's need for an extension of time to file additional evidence. The fact that the opportunity might have been taken by the defendant also to seek pleadings of the way in which the case is now to be put, does not I think affect that position in substance. I order that the plaintiffs pay the defendant's costs of today.

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