Hayes v Hurley
[2021] VCC 1114
•13 August 2021
| IN THE COUNTY COURT OF VICTORIA AT melbourne commercial DIVISION general cases list | Revised Not Restricted Suitable for Publication |
Case No. CI-20-04077
| DAVID GEORGE HAYES | First Plaintiff |
| LOUISE ALISON HAYES | Second Plaintiff |
| v | |
| SHAUN RONALD HURLEY | First Defendant |
| SAMANTHA JEAN HURLEY | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE COSGRAVE | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 3 August 2021 | |
DATE OF RULING: | 13 August 2021 | |
CASE MAY BE CITED AS: | Hayes & Anor v Hurley & Anor | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1114 | |
REASONS FOR RULING
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Subject: ORDERS
Catchwords: Timetabling orders – undertaking
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | K Mihaly | Tisher Liner FC Law |
| For the Defendants | M Sharpe | Yarra Ranges Lawyers |
| For the Interveners | L Alampi | Marsh & Maher Richmond Bennison |
HIS HONOUR:
The trial in this proceeding was due to be heard on 3 August 2021. On that day, Sharon Bourke and Darren Bourke applied to be joined to the proceeding as defendants. For reasons given on that day, I granted their application and adjourned the trial. I directed the parties to confer about both appropriate undertakings to maintain the status quo pending the trial in February 2022 and appropriate timetabling orders so that the matter was ready to proceed at that time.
I have received proposed orders and submissions from the parties. I have read and considered them in reaching my view as to the orders which should be made. They are attached as Annexure A to this document.
In ‘Other Matters’, I wish to maintain the position whereby the plaintiffs cannot unilaterally assert rights of carriage from the easement onto Lot 5. This is an important disputed issue in the proceeding. Likewise, the first and second defendants are not to put padlocks on gates on that property.
Given the plaintiffs made no prior complaints about Sharon Bourke and Darren Bourke and did not join them to the proceeding, I have not required undertakings from those defendants. However, they would be well advised not to adopt new practices or habits in any interaction they might have with the plaintiffs. If the Bourkes act in a way which interferes with the status quo, the Court may well grant interlocutory relief against them.
The orders as to costs make clear that I gave specific examples of costs that the plaintiffs were entitled to recover. I was not seeking to limit the categories of recoverable costs. Accordingly, the plaintiffs are entitled to whatever costs were thrown away by reason of the adjournment of the trial. Those costs must include the plaintiffs’ costs thrown away on 3 August 2021 and the costs of two days preparation for the trial.
I make the orders set out in Annexure A.
‘ANNEXURE A’
IN THE COUNTY COURT OF VICTORIA No. CI-20-04077
AT MELBOURNE
COMMERCIAL DIVISION
GENERAL CASES LIST
BETWEEN
DAVID GEORGE HAYES First Plaintiff
LOUISE ALISON HAYES Second Plaintiff
and
SHAUN RONALD HURLEY First Defendant
SAMANTHA JEAN HURLEY Second Defendant
GENERAL FORM OF ORDER
JUDGE: The Honourable Judge Cosgrave
DATE MADE: 11 August 2021
ORIGINATING PROCESS: Writ
HOW OBTAINED: At trial
ATTENDANCE: Mr K Mihaly, of counsel, for the plaintiffs
Dr M Sharpe, of counsel, for the defendants
Ms L Alampi, of counsel, for the interveners, Sharon Bourke and Darren Bourke
OTHER MATTERS: The plaintiffs and the first and second defendants by their counsel undertake to refrain from:
a.communicating with each other in any way other than through or in the presence of their respective solicitors;
b.harassing, shadowing or intimidating another party (or their invitees);
c.coming within a distance of 1 metre of each other;
d.interfering with the entry, exit or carriage of one party (or their invitees) along the property of another party as it is currently configured (for clarity, the plaintiffs are not to access Lot 5 via the gate they installed in the fence that runs along the Eastern Boundary of the Registered Easement) but which does not include general maintenance and upkeep, provided such work does not alter the existing configuration;
e.installing or positioning security cameras with a view of the inside or outside of another party’s house; and
f.allowing animals or children to:
i.come onto the property of the other; or
ii.in respect of the Plaintiffs, come onto the easement lands claimed by the Plaintiffs, unless supervised or under the control of an adult; and
g.causing any other person or allowing a dependent of theirs to perform any act that would be a breach of this order if performed by a party.
THE COURT ORDERS THAT:
The trial set down for 3 August 2021 be adjourned to 28 February 2022 for a hearing on an estimate of 8 days.
Any application to vacate the trial date or revise the estimation of trial duration must be made at least 30 days before the trial date.
Sharon Fiona Bourke be joined to the abovenamed proceeding as the third defendant.
Darren James Bourke be joined to the abovenamed proceeding as the fourth defendant.
By 4:00pm on 3 September 2021, the plaintiffs are to file and serve a further amended statement of claim.
By 4:00pm on 17 September 2021, the defendants are to file and serve a defence to the further amended statement of claim.
By 4:00pm on 1 October 2021, the parties must deliver any request for Further and Better Particulars of a pleading. Any request must be answered within 14 days.
By 4:00pm on 7 September 2021, the plaintiffs to give discovery of a copy of the conveyancing file in respect of the plaintiffs purchase of the property:
a.referred to as “Lot 5” in the Amended Statement of Claim; and
b.referred to as “137 Barak” in the Amended Statement of Claim.
By 4:00pm on 7 September 2021, the first and second defendants to give discovery of a copy of the conveyancing file in respect of the purchase of the property referred to as “139 Barak” in the said Amended Statement of Claim.
By 4:00pm on 1 October 2021, the third and fourth defendants are to give discovery (including full inspection) of:
a.each document referred to in their pleadings or particulars of pleadings;
b.any document which may harm their case; and
c.any document or class of documents which any other party reasonably requests the party to discover;
d.a copy of the conveyancing file in respect of the purchase of the property referred to as “50 Corbetts” in the said Amended Statement of Claim.
By 29 October 2021, the parties must have completed the mediation of the dispute. The parties must notify the Court if the action settles.
By 4:00pm on 1 October 2021, all parties are to serve on each other any expert evidence on which they will seek to rely on at trial with all supporting documentation. All expert reports are to comply with the requirements of Clause 3 of the Expert Witness Code of Conduct.
By 4:00pm on 28 January 2022, the plaintiffs must serve a proposed Amended Court Book Index on the defendants.
By 4:00pm on 11 February 2022, the defendants must respond with any requested additions to the Amended Court Book.
By 4:00pm on 21 February 2022, the plaintiffs must file and serve an electronic pdf copy of the Amended Court Book and a separate electronic .pdf copy of the Court Book Index on the Court and each of the parties to the proceeding.
The plaintiffs must have paper copies of the Amended Court Book and the Amended Court Book Index available for use by any witness which is physically present in the Court and for provision to the trial judge on request.
By 21 February 2022, the parties must file and serve Witness Outlines of Evidence, or Amended Witness Outlines of Evidence, as the case may be. Paragraphs 4, 5, 6 and 7 of the Orders of this Court dated 19 July 2021 apply to such outlines.
By 26 February 2022, the parties must cooperate to prepare and file the following documents, in consultation with trial counsel (if any), and file them with the Court any amended:
a.Chronology;
b.Summary of Key Issues; and
c.Trial Running Sheet.
The third and fourth defendants are to forthwith pay the plaintiffs’ costs of and incidental to the application to be joined to the proceeding and those thrown away by reason of the adjournment of the trial listed for 3 August 2021. Without limitation, such costs are to include:
a.the plaintiffs’ costs of the day on which the application was made; and
b.the plaintiffs’ costs of two days of preparation for the trial.
The costs referred to in paragraph 20 are, in default of agreement between the plaintiffs and the third and fourth defendants, to be taxed on an indemnity basis. If taxation is required, the plaintiffs may commence the taxation process immediately and not wait until the completion of the litigation.
22. All other interlocutory processes will be conducted in accordance with the Rules of Court.
23. Reserve liberty to the parties to apply by email to the Commercial Registry ([email protected]) for all further directions upon giving reasonable notice to all other parties.
DATE AUTHENTICATED:
13 August 2021
His Honour Judge Cosgrave
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