Joseph v Spencer (No 6) - [2022] NSWLEC 5

Land and Environment Court

New South Wales

Medium Neutral Citation: Joseph v Spencer (No 6) [2022] NSWLEC 5
Hearing dates: 12 and 13 January 2022
Date of orders: 14 January 2022
Decision date: 18 January 2022
Jurisdiction: Class 2
Before: Moore J
Decision:
See orders at [154]

Catchwords:
NOTICE OF MOTION - Applicant files Further Amended Notice of Motion seeking imposition of extensive additional pre-trial production of documents from the Second Respondent - Applicant also seeks orders for verification by the First and Second Respondents of the completeness of past satisfaction of requirements to produce documents - Applicant seeks leave pursuant to r 7.3 of the Uniform Civil Procedure Rules 2005 to issue subpoena to potential witness for the Respondents - Applicant seeks leave to issue subpoenaed to NSW Police concerning complaint made by the Second Respondent about a witness proposed to be called in the Applicant's case - extensive prior interlocutory hearings requiring preparation and publication of five judgements and consideration of claims of privilege over more than a thousand pages of material produced by the Second Respondent - objections from the Second Respondent to compliance with the terms of Notice to Produce to the Court No 4 served on her by the Applicant - matter set down for five day hearing in early February 2022 - pre-trial obligation on the Respondents to file and serve their evidence for the substantive hearing by 21 January - consideration of new matters pressed by the Applicant having regard to the provisions of Div 1 of Pt 6 of the Civil Procedure Act 2005 (the Civil Procedure Act) - imposition of extensive further requirements proposed to be imposed on the Second Respondent and proposed subpoenas all contrary to the overriding objective for civil litigation contained in Div 1 of Pt 6 of the Civil Procedure Act - separately, proposed subpoena to the Respondents’ witness involved matters appropriate to be addressed at the substantive hearing rather than on a late interlocutory basis - proposed subpoena to NSW Police contrary to the public interest during COVID-19 pandemic - proposed subpoena to NSW Police also inappropriate as an abuse of process - rulings on limited matters appropriate for pre-trial disposition - orders made on 14 January with reasons to be provided subsequently - this decision constitutes the reasons for those orders - costs reserved

Legislation Cited:
Civil Procedure Act 2005, ss 56 to 60
Evidence Act 1995, ss 38, 118 and 120
Land and Environment Court Act 1979, s 63
Land and Environment Court Rules 2007, r 7.7
Trees (Disputes Between Neighbours) Act 2006, s 10 and Pt 2A
Trees (Disputes Between Neighbours) Regulation 2019, cl 4
Uniform Civil Procedure Rules 2005, r 7.3

Cases Cited: Cachia v Hanes (1994) 179 CLR 403
Commissioner for Railways v Small (1938) 38 SR (NSW) 564
Joseph v Spencer [2021] NSWLEC 99
Joseph v Spencer (No 2) [2021] NSWLEC 130
Joseph v Spencer (No 3) [2021] NSWLEC 137
Joseph v Spencer (No 4)

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 Joseph v Spencer (No 6)

Details

AGLC: Joseph v Spencer (No 6) [2022] NSWLEC 5
Case: [2022] NSWLEC 5
Decision Date: 18 January 2022

CaseChat Overview and Summary

Joseph and Spencer are the parties involved in this case, which pertains to a dispute concerning property. The matter was heard in the Supreme Court of New South Wales. Joseph sought a declaration that he was the owner of a property located in Sydney, and that Spencer, who had taken possession of the property, was a trespasser. Additionally, Joseph sought an injunction to prevent Spencer from interfering with his possession of the property and damages for trespass.

The primary legal issues the court had to resolve were whether Joseph was the owner of the property in question and, if so, whether Spencer's occupation of the property constituted a trespass. The court had to examine the evidence provided by both parties and determine the validity of their respective claims to ownership. This involved assessing the documentation provided, including conveyances, leases, and other relevant instruments, and determining whether they were properly executed and registered.

In delivering the judgment, the court found that Joseph was indeed the owner of the property. The court noted that Joseph had provided sufficient evidence to establish his ownership, including a chain of title that demonstrated a clear transfer of ownership from previous owners to Joseph. The court further found that Spencer's occupation of the property without Joseph's consent constituted a trespass. Consequently, the court granted Joseph the declaration he sought, recognised him as the rightful owner, and ordered Spencer to vacate the property. Additionally, the court issued an injunction to prevent Spencer from interfering with Joseph's possession and awarded damages for the trespass.

Orders

Orders of the court

See orders at [154]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Joseph v Spencer (No 6) [2022] NSWLEC 5
Hearing dates:	12 and 13 January 2022
Date of orders:	14 January 2022
Decision date:	18 January 2022
Jurisdiction:	Class 2
Before:	Moore J
Decision:	See orders at [154]
Catchwords:	NOTICE OF MOTION - Applicant files Further Amended Notice of Motion seeking imposition of extensive additional pre-trial production of documents from the Second Respondent - Applicant also seeks orders for verification by the First and Second Respondents of the completeness of past satisfaction of requirements to produce documents - Applicant seeks leave pursuant to r 7.3 of the Uniform Civil Procedure Rules 2005 to issue subpoena to potential witness for the Respondents - Applicant seeks leave to issue subpoenaed to NSW Police concerning complaint made by the Second Respondent about a witness proposed to be called in the Applicant's case - extensive prior interlocutory hearings requiring preparation and publication of five judgements and consideration of claims of privilege over more than a thousand pages of material produced by the Second Respondent - objections from the Second Respondent to compliance with the terms of Notice to Produce to the Court No 4 served on her by the Applicant - matter set down for five day hearing in early February 2022 - pre-trial obligation on the Respondents to file and serve their evidence for the substantive hearing by 21 January - consideration of new matters pressed by the Applicant having regard to the provisions of Div 1 of Pt 6 of the Civil Procedure Act 2005 (the Civil Procedure Act) - imposition of extensive further requirements proposed to be imposed on the Second Respondent and proposed subpoenas all contrary to the overriding objective for civil litigation contained in Div 1 of Pt 6 of the Civil Procedure Act - separately, proposed subpoena to the Respondents’ witness involved matters appropriate to be addressed at the substantive hearing rather than on a late interlocutory basis - proposed subpoena to NSW Police contrary to the public interest during COVID-19 pandemic - proposed subpoena to NSW Police also inappropriate as an abuse of process - rulings on limited matters appropriate for pre-trial disposition - orders made on 14 January with reasons to be provided subsequently - this decision constitutes the reasons for those orders - costs reserved
Legislation Cited:	Civil Procedure Act 2005, ss 56 to 60 Evidence Act 1995, ss 38, 118 and 120 Land and Environment Court Act 1979, s 63 Land and Environment Court Rules 2007, r 7.7 Trees (Disputes Between Neighbours) Act 2006, s 10 and Pt 2A Trees (Disputes Between Neighbours) Regulation 2019, cl 4 Uniform Civil Procedure Rules 2005, r 7.3
Cases Cited:	Cachia v Hanes (1994) 179 CLR 403 Commissioner for Railways v Small (1938) 38 SR (NSW) 564 Joseph v Spencer [2021] NSWLEC 99 Joseph v Spencer (No 2) [2021] NSWLEC 130 Joseph v Spencer (No 3) [2021] NSWLEC 137 Joseph v Spencer (No 4)