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Gee v Burger

Gee v Burger

Case [2009] NSWSC 149 13 March 2009

Civil Litigation & Procedure

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CITATION: Gee v Burger [2009] NSWSC 149

HEARING DATE(S): 17 April, 13 and 14 October 2008

JUDGMENT DATE :
13 March 2009

JUDGMENT OF: McLaughlin AsJ

DECISION: 1. I make orders as sought in paragraphs 1, 2 and 3 in the notice of motion filed by the Plaintiffs on 8 February 2008.
2. I order that the notice of motion filed by the First Defendant on 20 March 2008 be dismissed.
3. I order that the costs of the aforesaid notice of motion filed by the Plaintiffs on 8 February 2008 be the costs of the Plaintiffs in the proceedings.
4. I order that the costs of the aforesaid notice of motion filed by the First Defendant on 20 March 2008 be the costs of the Plaintiffs in the proceedings.
5. The exhibits may be returned.

CATCHWORDS: Practice and Procedure - pleadings - application for leave to amend statement of claim - whether proposed pleading discloses a reasonable cause of action - whether Plaintiffs have an arguable case - claim in respect to an easement - existence of an actionable right to privacy - nature of relief sought - a Court of Equity can always mould to the circumstances of the proven case the relief which it ultimately grants - nature of relief claimed does not justify striking out of a pleading or dismissal of proceedings - form of pleading - alleged prolixity - standing of various Plaintiffs - joinder of additional Defendant

LEGISLATION CITED: Civil Procedure Act 2005
Conveyancing Act 1919
Real Property Act 1900
Supreme Court Act 1970
Uniform Civil Procedure Rules

CATEGORY: Procedural and other rulings

CASES CITED: Wheeler v Baldwin [1934] HCA 58; (1934) 52 CLR 609
Victoria Park Racing and Recreation Grounds v Taylor [1937] HCA 45; (1937) 58 CLR 479
Rediffusion (Hong Kong) Limited v Attorney General [1970] AC 1136
University of New South Wales v Moorehouse [1975] HCA 26; (1975) 133 CLR 1
Bathurst City Council v Saban (1985) 2 NSWLR 704
Denton v Phillpot (1990) NSWConvR 55,543
Raciti v Hughes (1995) 7 BPR 14,837
Cavacourt Pty Limited v Durian (Holdings) Pty Limited [1998] NSWSC 787; (1998) 9 BPR 16,833
Durian (Holdings) Pty Limited v Cavacourt Pty Limited [2000] NSWCA 28; (2000) 10 BPR 18,099
Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552
Australian Broadcasting Corporation v Lenah Game Meats Pty Limited [2001] HCA 63; (2001) 208 CLR 199
Re Finlayson [2002] FamCA 898; (2002) 174 FLR 165
Grosse v Purvis [2003] QDC 151
Giller v Procopets [2004] VSC 113
Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; (2006) 226 CLR 256
John Fairfax Publications v Hitchcock [2007] NSWCA 364; (2007) 70 NSWLR 484
Westfield Management Pty Limited v Perpetual Trustee Company Limited [2007] HCA 45; (2007) 81 ALJR 1887

TEXTS CITED: Meagher, Gummow and Lehane, Equity Doctrines and Remedies, 4th ed (2002)
Holdsworth’s History of English Law, 3rd ed (1925)

PARTIES: Andrew Gee (First…

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 Gee v Burger

Details

AGLC: Gee v Burger [2009] NSWSC 149
Case: [2009] NSWSC 149
Decision Date: 13 March 2009

CaseChat Overview and Summary

The case of Gee v Burger involved an application for leave to amend a statement of claim. The plaintiffs sought to modify their statement of claim to include additional details about an easement and a claim for a right to privacy. The application was heard in the Federal Court of Australia. The central dispute involved whether the proposed pleading disclosed a reasonable cause of action and whether the plaintiffs had an arguable case. The plaintiffs also sought relief in equity, arguing that the court could mould the relief to the circumstances of the proven case.

The court considered whether the proposed pleading was sufficient to disclose a reasonable cause of action. It assessed whether the plaintiffs had an arguable case regarding the easement and the right to privacy. The court also examined the nature of the relief sought and whether the form of the pleading, including its alleged prolixity, justified striking out the pleading or dismissing the proceedings. Additionally, the court addressed the standing of the various plaintiffs and the joinder of an additional defendant.

The court found that the proposed pleading sufficiently disclosed a reasonable cause of action and that the plaintiffs had an arguable case. The nature of the relief claimed did not justify striking out the pleading or dismissing the proceedings. The court acknowledged that a Court of Equity could mould the relief to the circumstances of the proven case. The court allowed the application for leave to amend the statement of claim, enabling the plaintiffs to include additional details about the easement and the right to privacy. The court also addressed the standing of the plaintiffs and the joinder of the additional defendant, ensuring that all relevant parties were considered in the proceedings.

Orders