Corica v Smith

[2012] WASC 327

CORICA -v- SMITH [2012] WASC 327

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2012] WASC 327
Case No:	CIV:1824/2012	Heard:	5 SEPTEMBER 2012
Coram:	MASTER SANDERSON	Delivered:	12/09/2012
No of Pages:	4	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	B
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Parties:	SALVATORE CORICA MARILYN KAYE CORICA ELAINE ANN SMITH ALAN GEORGE SMITH REGISTRAR OF TITLES
Catchwords:	Application to remit matter from Magistrates Court to Supreme Court Turns on own facts
Legislation:	Criminal Code (WA) Dividing Fences Act 1961 (WA) Magistrates Court Act 2004 (WA) Property Law Act 1969 (WA) Transfer of Land Act 1893 (WA)
Case References:	Nil

• Last Updated: 12/09/2012


JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS


CITATION : CORICA -v- SMITH [2012] WASC 327 CORAM : MASTER SANDERSON HEARD : 5 SEPTEMBER 2012 DELIVERED : 12 SEPTEMBER 2012 FILE NO/S : CIV 1824 of 2012 BETWEEN : SALVATORE CORICA

MARILYN KAYE CORICA
Plaintiffs

AND

ELAINE ANN SMITH
ALAN GEORGE SMITH
First Defendants

REGISTRAR OF TITLES
Second Defendant


Catchwords:

Application to remit matter from Magistrates Court to Supreme Court - Turns on own facts

Legislation:

Criminal Code (WA)
Dividing Fences Act 1961 (WA)
Magistrates Court Act 2004 (WA)
Property Law Act 1969 (WA)
Transfer of Land Act 1893 (WA)


(Page 2)

Result:

Application dismissed

Category: B


Representation:

Counsel:


First-named Plaintiff : In person
Second-named Plaintiff : No appearance
First Defendants : Mr A M Prime
Second Defendant : No appearance


Solicitors:


First-named Plaintiff : In person
Second-named Plaintiff : No appearance
First Defendants : MDS Legal
Second Defendant : No appearance





Case(s) referred to in judgment(s):

Nil



(Page 3)

1 MASTER SANDERSON: On 11 May 2012 the first and second-named plaintiffs filed an originating summons which sought a review order under s 36 of the Magistrates Court Act 2004 (WA). On 26 June 2012 McKechnie J made the following order:

The notice of originating motion be treated as an application to transfer the whole Magistrates Court action in Midland 699/2012 to the Supreme Court because of a lack of jurisdiction in the Magistrates Court to grant relief from forfeiture.

2 The plaintiffs are self-represented. It is somewhat difficult to ascertain just what claim they are putting. It is variously described by the plaintiffs in their affidavits and submissions as being an 'encroachment' or a 'trespass'. However some facts are agreed.

3 The plaintiffs are the registered proprietors of Nos 8 and 10 Marloo Road Greenmount. The defendants are the registered proprietors of 6 Gabo Road Greenmount. The properties of the parties share a common boundary. The plaintiffs without consultation removed an existing fence. The plaintiffs put up what they described as 'temporary fencing'. They took that step because both parties have dogs. The defendants say it was never intended the present fence would be anything other than temporary.

4 It is clear there is a high level of animosity between the plaintiffs and the defendants. One of the main issues according to the defendants is the plaintiffs have dumped a significant amount of un-retained fill on their property. Despite the plaintiffs undertaking to the defendants to remove a significant amount of the excess fill and construct a proper fence and cut-off wall between the two properties, nothing has been done. This led to the local council taking action against the plaintiffs. The plaintiffs were subsequently convicted and fined.

5 Insofar as it is possible to ascertain the basis upon which the plaintiffs seek to have the Magistrates Court proceedings transferred to this court, a statement of the plaintiffs' claims found on pages 6 - 8 of annexure SC and MC2 to the plaintiffs' affidavit of 10 May 2012 is of assistance. The plaintiffs also filed written submissions. Based upon these documents in particular and the affidavits filed by and on behalf of the plaintiffs generally, it would seem the following matters are raised.

6 Reference is made to s 131.4 of the Criminal Code (WA). Section 131.4 of the Criminal Code is only relevant where a party seeks to dishonestly appropriate the property of another where that party is a

(Page 4)


Commonwealth entity. Neither parties here are a Commonwealth entity and there is no cause of action.

7 The plaintiffs appear to allege criminal trespass. No particulars of this claim are given. However, it seems the plaintiffs allege that the defendants trespassed on the plaintiffs' land in the course of erecting the temporary fence. Section 21 of the Dividing Fences Act 1961 (WA) permits a person engaged in constructing or repairing a fence under the Act or whose servants or agents to enter the neighbour's property to effect that construction or repair. No claim for criminal trespass can lie.

8 The plaintiffs refer to s 121 of the Property Law Act 1969 (WA). This section relates to easements in respect of air and light. Section 121 provides such an easement does not exist unless the grant or instrument creating it is registered on the title. There is no easement registered on the title of either property and no claim under this section of the Act.

9 Reference is made to s 122 of the Property Law Act. This section deals with relief against forfeiture in respect of an encroachment of a building onto neighbour's land. The term building includes any structure. Assuming the temporary fence is a structure within the section, relief is provided to the encroaching owner. On the plaintiffs' case the encroaching owner would be the first defendants. No relief is available to the plaintiffs under s 122(2) of the Act.

10 Reference is also made to s 199 of the Transfer of Land Act 1893 (WA). This section provides the certificate of title of a property is to be an absolute bar and estoppel to any action for ejectment. No claim for ejectment has been brought by the first defendants against the plaintiffs. The claim must fail.

11 In all there is no basis upon which this matter can be moved from the Magistrates Court to the Supreme Court. On that basis the application ought be dismissed. It is an application which ought never have been brought. While I accept the plaintiffs are acting in person they may have been well advised to have taken advice before bringing an application of this sort. The first defendants ought not be disadvantaged by such an application. Accordingly, the plaintiffs should pay the first defendants' costs of this application on a full indemnity basis such costs to include the reserved costs.